Com. v. Atkinson, C.

J-S09031-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER DAVID ATKINSON,
Appellant No. 1251 WDA 2014
Appeal from the Judgment of Sentence entered July 2, 2014,
in the Court of Common Pleas of Mercer County,
Criminal Division, at No(s): CP-43-CR-0001030-2013
BEFORE: FORD ELLIOTT, P.J.E., BOWES, and ALLEN, JJ.
MEMORANDUM BY ALLEN, J.: FILED FEBRUARY 23, 2015
Christopher David Atkinson (“Appellant”) appeals from the judgment of
sentence imposed after he pled guilty to one count of aggravated indecent
assault.1 We affirm.
The victim, who suffers from cerebral palsy and is unable to walk, or
speak on her own without electronic assistance, reported that Appellant
sexually assaulted her when she was approximately 13 years of age, while
she was living with him in foster care between 2010 and 2012. Affidavit of
Probable Cause, 5/1/13; N.T., 12/12/13, at 12-51.
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1
18 Pa.C.S.A. § 3125(a)(8).
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On December 12, 2013, Appellant pled guilty to aggravated indecent
assault, and the trial court ordered an assessment by the Sexual Offender
Assessment Board (“SOAB”) in accordance with the Sex Offender
Registration and Notification Act (“SORNA”), 42 Pa.C.S.A. § 9799.10 et seq.
On July 2, 2014, the trial court conducted a hearing to determine whether
Appellant met the criteria for classification as a sexually violent predator
(“SVP”), at the conclusion of which it determined that the Commonwealth
had proved by clear and convincing evidence that Appellant qualified as a
Tier III SVP, and ordered Appellant to lifetime registration. That same day,
the trial court sentenced Appellant to a term of imprisonment of three (3) to
ten (10) years.2 No post-sentence motions were filed.
Appellant filed a notice of appeal on July 31, 2014. Both Appellant and
the trial court have complied with Pa.R.A.P. 1925.
Appellant presents three issues for our review:
I. Did the trial court err in finding that the Commonwealth
proved through clear and convincing evidence that
[Appellant] was an SVP when the Commonwealth only
offered incompetent expert testimony and the [trial court]
was not presented with any credible testimony to
substantiate that [Appellant] suffered from a mental
abnormality, specifically paraphilia, that requires acts of
abuse that occur for a period of at least 6 months or was
likely to reoffend?
II. Did the trial court err by admitting [the testimony of the
Commonwealth’s expert witness (Brenda) Manno] when
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2
Appellant is deaf and was assisted by an interpreter at the guilty plea
hearing, the SVP hearing, and the sentencing hearing.
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such testimony was incompetent because it relied on
extrajudicial data that was not of a type that would be
reasonably relied upon by experts in the particular field as
required by the Pennsylvania Rules of Evidence?
III. Did the trial court err by admitting hearsay in the
testimony of Ms. Manno in violation of [Appellant’s] right
to confrontation in the Sixth Amendment of the United
States Constitution and Article I § 9 of the Pennsylvania
Constitution because the testimony amounted to
testimonial hearsay that did not fall into the only exception
to the rule in cases where the declarant is unavailable and
[Appellant] had the prior opportunity to cross-examine the
[declarant]?
Appellant’s Brief at 4-5.
Although Appellant lists three issues in his brief, his issues all pertain
to the trial court’s reliance on the testimony of the Commonwealth’s expert
witness, Brenda A. Manno, a member of the Pennsylvania SOAB. Appellant’s
Brief at 16-29. Because Appellant’s issues are interrelated, we will address
them together.
Appellant argues that Ms. Manno’s testimony about her belief that
Appellant is an SVP, was based on her review of unsubstantiated, unreliable
hearsay contained in the police report and criminal complaint, and that her
testimony could not support the trial court’s finding that Appellant is an SVP.
Appellant maintains that Ms. Manno never reviewed the guilty plea colloquy
in making her assessment that Appellant is an SVP, and that without having
knowledge of the factual basis of Appellant’s crimes as set forth at the guilty
plea hearing, Ms. Manno could not credibly testify about whether Appellant’s
conduct qualified him for SVP designation. Accordingly, Appellant argues
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that the trial court’s SVP determination based on Ms. Manno’s testimony was
unsupported by sufficient evidence.3
“A challenge to a determination of SVP status requires us to view the
evidence ... [I]n 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. Prendes, 97 A.3d 337, 355 (Pa.
Super. 2014) (citations omitted). “Questions of evidentiary sufficiency
present questions of law; thus, our standard of review is de novo and our
scope of review is plenary.” Commonwealth v. Stephens, 74 A.3d 1034,
1038 (Pa. Super. 2013) (citations omitted).
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. The reviewing court must examine all of
the Commonwealth's evidence without consideration of its
admissibility. A successful sufficiency challenge can lead to an
outright grant of relief such as a reversal of the SVP
designation[.]
Prendes, 97 A.3d at 356.
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3
Appellant does not challenge the admissibility of Ms. Manno’s expert
testimony. At trial, when offered the opportunity by the trial court to object
to the qualification of Ms. Manno as an expert, Appellant made no objection
nor cross-examined Ms. Manno with regard to her qualifications. See N.T.,
7/2/14, at 4-8.
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Appellant argues that Ms. Manno’s testimony was insufficient to
support an SVP determination because Ms. Manno’s SVP assessment relied
on the unsubstantiated facts set forth in the police report and criminal
complaint, which differed from the facts admitted by Appellant at the guilty
plea hearing. Appellant maintains that at the guilty plea hearing, he
admitted to only one instance of sexual contact with the victim, which could
not support a determination that Appellant engaged in “predatory” behavior.
Appellant’s Brief at 16-20. Appellant asserts that the only evidence
indicating that he engaged in sexual contact with the victim on more than
one occasion and over an extended period of time, was contained in the
police report and criminal complaint – documents that constituted hearsay
and which could not be relied upon to support an SVP determination.
Appellant thus claims that the evidence was insufficient to classify him as an
SVP.4
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4
At the guilty plea hearing, Appellant’s counsel set forth the factual basis for
the crime charged (aggravated indecent assault) as follows:
Appellant’s Counsel: [Did] you have a child who lived in your home
that had cerebral palsy that you and your wife
took care of?
Appellant: Yes.
Appellants’ Counsel: And while this female lived in your home, did
you, on at least one occasion, take your finger
and touch her vagina?
Appellant: One time.
(Footnote Continued Next Page)
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We have explained the procedure pertaining to SVP assessments:
An SOAB board member conducts the assessment to determine
if the individual should be classified as an SVP. The SOAB
merely assesses the defendant; it does not perform an
adjudicative function. [42 Pa.C.S.A. § 9799.24] dictates the
factors for the expert to consider when making an SVP analysis.
Prendes, 97 A.3d at 357.
To support an SVP designation, the Commonwealth must show (1)
that the individual has been convicted of a sexually violent offense as set
forth in section 9799.14, and (2) that the individual has a mental
abnormality or personality disorder that makes him likely to engage in
predatory sexually violent offenses. When the Commonwealth meets this
burden, the trial court makes the final determination as to whether the
defendant is an SVP. Prendes 97 A.3d at 357-358.
Here, at the SVP hearing, Ms. Manno opined that Appellant had a
mental abnormality or personality disorder that made him likely to engage in
predatory sexually violent offenses. Ms. Manno testified that she conducted
her assessment of Appellant as follows:
_______________________
(Footnote Continued)
Appellant’s counsel: And did your finger even just slightly penetrate
her vagina?
Appellant: Yeah, just touched.
N.T., 12/12/13, at 12.
The affidavit of probable cause appended to the criminal complaint,
however, stated that the sexual contact “start[ed] in 2010 up to November
of 2012.” Affidavit of Probable cause, 5/1/13.
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Prior to the case being assigned to a[n] [SOAB] board
member, it’s assigned to a board investigator, and in this case
that investigator was Nicole Barr. That person goes forward and
collects all the records that are available on the Defendant and
offers the Defendant [an] interview which, in this case,
[Appellant] had the right to decline the interview process and he
did.
That information is forwarded to me, the assigned board
member. I then review all that information. If the Defendant is
participating, I offer them an interview; and if not, then I do my
report based on file review of the information that was provided.
***
I reviewed the information that was provided in the report
by the investigator, Nicole Barr; I reviewed a records check for
ChildLine; I reviewed the police report, the criminal complaint,
and the case disposition, as well as Court Orders from this
current case.
***
In reviewing the offense, it was noted that the victim in
the case was not related. She, in fact, had resided with her birth
family up until she was approximately eight years of age. The
record indicated that she had physical limitations of cerebral
palsy and they were significant enough her family could not care
for her. They found a host family here, which was [Appellant
and his wife, so she came to reside with them.
She reported abuse from the time she was approximately
12 until she was 15 years-of-age. The actual dates in the
Criminal Complaint would have been January 1st of 2010 to
November 30th, 2012. So we have a time period a little shy of
three years.
N.T., 7/2/14, at 8-10.
Appellant’s counsel immediately raised a hearsay objection to Ms.
Manno’s reliance on information contained in the criminal complaint to
determine the length of time over which the abuse occurred. Id. The trial
court overruled the objection, and Ms. Manno proceeded to outline the
various factors that she considered in making her SVP determination
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pursuant to 42 Pa.C.S.A. § 9799.24, including the nature of Appellant’s
relationship as a primary caregiver to the victim, involved in dressing
feeding, bathing, and changing her; the victim’s physical and mental
limitations; the victim’s inability to communicate without the aid of a
computer; the victim’s dependence on Appellant for her basic needs; the
nature of the sexual contact; the age of the victim; the age of Appellant; the
lack of prior history of abuse by Appellant; the fact that there was only one
victim; and the length of the abuse. N.T., 7/2/14, at 5-13.
Ms. Manno testified that after reviewing these factors, she concluded
that Appellant “meets the diagnostic criteria for paraphilia not otherwise
specified” and explained that “to meet the [diagnosis of] paraphilia, there
has to be a period of at least six months where you have recurrent, intense
sexually arousing fantasies, urges, or behaviors” with regard to “children
that were not prepubescent or non-consenting adults” as specified in the
DSM IV. Id., at 14.
Appellant takes issue with Ms. Manno’s presumption that Appellant’s
criminal behavior extended over a period greater than six months. Appellant
argues that Ms. Manno’s reliance on the police report and criminal complaint
to determine that the abuse extended over a greater than six month period
– without having interviewed Appellant or reviewed the guilty plea colloquy
to verify her facts – could not support her determination that Appellant
suffered from a “mental abnormality” in the form of paraphilia or that his
behavior was predatory to support an SVP classification. N.T., 7/2/14, at
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14-16. Appellant maintains that at the guilty plea hearing, there was no
evidence that his sexual contact with the victim extended over a period in
excess of six months, as required for a diagnosis of paraphilia. Rather,
Appellant contends that the only evidence that the sexual activity extended
over a period greater than six months was contained in the unsubstantiated
police report and criminal complaint, and that the trial court could not rely
on such hearsay documents to classify Appellant as an SVP.
In Prendes, supra, we addressed a similar challenge where the
appellant argued that the record did not support his SVP classification
because the trial court’s SVP determination was based on expert testimony
that was founded on unreliable hearsay and unproven allegations. We made
clear in Prendes:
The statute governing the SVP assessment does not limit the
expert's consideration of information only to that admitted at
trial or at the guilty plea proceedings. In fact, the statute
requires state, county, and local agencies, offices or entities to
provide copies of records and information as requested by the
SOAB in connection with an SVP assessment, without limitation
on the “admissibility” of that information. See 42 Pa.C.S.A. §
9799.24(c). As a result, it stands to reason that some if not
many of the facts necessary to perform the SVP assessment
might not have been proven beyond a reasonable doubt. Thus,
we hold an SOAB expert opinion falls within the general rules
regarding expert witnesses. As such, a SOAB expert's opinion
may be based on facts or data that the expert has been made
aware of or personally observed so long as experts in the
particular field reasonably rely on those kinds of facts or data in
forming an opinion on the subject; the facts or data consulted
need not be admissible for the expert's opinion to be admitted.
See Pa.R.E. 702, 703 ... The SOAB expert must state the facts
or data on which the opinion is based. See Pa.R.E. 705 and
Comment (explaining otherwise inadmissible facts and data
supporting expert opinion are considered only to explain the
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basis for an expert's opinion, not as substantive evidence).
Then, the rules of evidence place the full burden of exploration
of facts and assumptions underlying the testimony of an expert
witness squarely on the shoulders of opposing counsel's cross-
examination. ... Opposing counsel bears the burden of
exposing and exploring any weaknesses in the underpinnings of
the expert's opinion.
Prendes, 97 A.3d at 360-361 (some citations omitted).
Here, Ms. Manno stated that when performing her assessment, she
relied on the police report, the criminal complaint, and the case disposition,
as well as various orders issued by the trial court in this matter. N.T.,
7/2/14, at 8-10. As explained in Prendes “an SOAB expert opinion falls
within the general rules regarding expert witnesses [and as] such, a SOAB
expert's opinion may be based on facts or data that the expert has been
made aware of or personally observed so long as experts in the particular
field reasonably rely on those kinds of facts or data in forming an opinion on
the subject; the facts or data consulted need not be admissible for the
expert's opinion to be admitted.” Prendes, 97 A.3d at 360-361 citing
Pa.R.E. 702; Pa.R.E.703; In re D.Y., 34 A.3d 177, 182–83 (Pa. Super.
2011). Thus, Ms. Manno was free to rely on the police report and criminal
complaint in making her assessment. Appellant has not demonstrated that
these documents were not of the kind “reasonably relied on by experts in
the particular field” of SVP assessment. Prendes, supra. Moreover, as the
trial court explained:
Members of the SOAB such as Ms. Manno, regularly make
SVP assessments relying solely on documents such a police
reports, affidavits of probable cause, prior criminal records,
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Department of Transportation records, and other documents.
Ms. Manno testified that she had performed 889 SVP
assessments by July 2, 2013 and that she typically used these
types of documents in making an assessment. [N.T. 7/2/14, at
8, 20]. Because experts such as Ms. Manno always use these
types of documents to perform their assessments, and because
Ms. Manno was certified as such an expert, her testimony was
admissible.
Trial Court Opinion, 9/25/14, at 4-5.
Also, although Appellant emphasizes that he admitted at the guilty
plea hearing to only one instance of sexual contact, and that one instance of
sexual contact is inadequate for Ms. Manno to classify paraphilia (which
requires greater than six months of sexual contact), Appellant was free to
cross-examine Ms. Manno at the SVP hearing in this regard, and to explore
the facts and assumptions underlying her testimony and impeach her
credibility by questioning Ms. Manno regarding the facts set forth in the
guilty plea; Appellant’s counsel did not do so. See Prendes 97 A.3d at 358
(once expert testimony has been admitted, the rules of evidence place the
burden of exploring the facts and assumptions underlying the testimony of
an expert witness squarely on the shoulders of opposing counsel who bears
the burden, during cross-examination, of exposing and exploring any
weaknesses in the expert's opinion).
Finally, we note that while Appellant takes issue with Ms. Manno’s
reliance on the police report and criminal complaint, and “non-use of
[Appellant’s] guilty plea colloquy”, (Appellant’s Brief at 21), Appellant had
the opportunity to participate in the SVP assessment process and meet with
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Ms. Manno for an interview, but declined to do so. “The absence of an
interview does not preclude the ability to evaluate the offender's behavior
through available history for characteristics similar or dissimilar to the
criteria set forth in the law for defining a sexually violent predator.”
Prendes 97 A.3d at 359 quoting Commonwealth v. Woods, 909 A.2d
372, 381 (Pa. Super. 2006), appeal denied, 591 Pa. 714, 919 A.2d 957
(2007).
Because we conclude that it was permissible for Ms. Manno to rely on
the police report and criminal complaint in her SVP assessment, Appellant’s
assertion that Ms. Manno’s testimony was insufficient to support the trial
court’s SVP determination lacks merit.
Appellant additionally raises a weight of the evidence challenge to Ms.
Manno’s credibility, asserting that Ms. Manno’s expert testimony was
incredible and unreliable because she did not independently verify the facts
contained in the police report and criminal complaint. Appellant’s Brief at
23-29.
A weight of the evidence claim must be raised either orally or by
written motion before sentencing, or by written motion after sentencing in
order to be preserved for appellate review. In re J.B., --- A.3d ---, 2014
WL 7090340 at 20 (Pa. December 15, 2014); Pa.R.Crim.P. 607. There are
few published opinions addressing a weight of the evidence challenge to an
SVP determination. However, in Commonwealth v. Ratushny, we found
no reason to exempt SVP hearings from the general requirement that weight
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claims must be raised before the trial court to be preserved for appeal.
Ratushny, 17 A.3d 1269, 1271-1272 (Pa. Super. 2011) (holding that the
appellant waived his challenge to the weight of the evidence presented at his
SVP hearing because he had not raised the issue in the trial court).
Our review of the record reveals that, at the conclusion of the SVP
hearing, Appellant’s counsel did raise an argument that Ms. Manno based
her findings on unproven and unreliable allegations contained in the police
report and criminal complaint, thereby attacking the reliability of Ms.
Manno’s determinations, and adequately preserving a weight of the evidence
challenge. N.T., 7/2/14, at 24-25. Therefore, we proceed to address the
merits of this claim.
Our standard of review of a weight of the evidence claim is for an
abuse of discretion. Appellate review is limited to whether the trial judge's
properly exercised its discretion, and relief is warranted only where the facts
and inferences of record disclose a palpable abuse of discretion. See
Ratushny, 17 A.3d at 1272. An expert’s opinion, which is rendered to a
reasonable degree of profession certainly, is itself evidence which the trial
court is free to believe or disbelieve in whole or in part. Prendes, 97 A.3d
at 356. Here, the trial court, in a proper exercise of its discretion, credited
the expert testimony of Ms. Manno in concluding that Appellant met the
criteria for classification as an SVP. We will not disturb the trial court’s
credibility determinations on appeal, and find no merit to Appellant’s weight
of the evidence challenge.
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Finally, to the extent Appellant argues the admission of Ms. Manno’s
testimony violated his right to confrontation under the United States and
Pennsylvania Constitutions, we find Appellant’s argument to be undeveloped
and therefore waived. See Appellant’s Brief at 30-32. Appellant cites only
two cases, Commonwealth v. Curnutte, 871 A.2d 839 (Pa. Super. 2005)
and Crawford v. Washington, 541 U.S. 36 (2004), without any meaningful
discussion or analysis as to how these cases specifically relate to his claim
that his sixth amendment right to confrontation was violated. “[W]here an
appellate brief fails to provide any discussion of a claim with citation to
relevant authority or fails to develop the issue in any other meaningful
fashion capable of review, that claim is waived.” Commonwealth v.
Wilgus, 40 A.3d 1201, 1205 (Pa. 2012) (citations omitted); see also
Commonwealth v. Kearney, 92 A.3d 51, 66 (Pa. Super. 2014) (holding
that the appellant’s failure to develop an argument in support of his claim, or
provide pertinent citation to authority rendered his claim waived).
For the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/23/2015
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