Com. v. Yant, V.

J-S17027-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VINCENT YANT
Appellant No. 1393 EDA 2016
Appeal from the Judgment of Sentence April 15, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0002716-2015
BEFORE: OLSON, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 17, 2017
Appellant, Vincent Yant, appeals from the April 15, 2016 judgment of
sentence entered in the Court of Common Pleas of Philadelphia County (“trial
court”) sentencing Appellant to 3½-7 years’ incarceration followed by 10
years’ probation, and classifying Appellant as sexually violent predator
(“SVP”) for false imprisonment, stalking, indecent assault, indecent
exposure, and harassment.1 Appellant is challenging the trial court’s
classification of Appellant as an SVP. Upon review, we affirm.
Briefly, Appellant was arrested on November 16, 2014, in connection
with two incidents, one on August 31, 2014, and another on October 26,
2014. During the first incident, Appellant “followed the seventeen year old
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18 Pa.C.S.A. §§ 2903, 2790.1, 3126, 3127, and 2709 respectively.
J-S17027-17
female victim, a stranger to him, after she got off public transportation,
grabbed her[,] and attempted to drag her into an empty lot and assault her;
the victim’s screams caught the attention of a passerby.” Trial Court
Opinion, 8/15/16, at 2. In the second incident, Appellant “followed the
victim, also a stranger to him, after she exited public transportation,
exposed himself and began masturbating, then fled.” Id.
Appellant entered a negotiated guilty plea on October 13, 2015, during
which he was made aware that he would be subject to an SVP assessment.
The trial court held an SVP hearing on April 15, 2016, after which the trial
court found Appellant to be an SVP. Appellant did not file any post-sentence
motions but filed a timely notice of appeal on April 27, 2016. Appellant’s
trial counsel filed a motion to withdraw, which the trial court granted on May
13, 2016, and appointed appellate counsel. On June 1, 2016, the trial court
directed Appellant to comply with Pa.R.A.P. 1925(b). After granting
Appellant an extension, Appellant filed a Rule 1925(b) statement on July 18,
2016. The trial court entered a Pa.R.A.P. 1925(a) opinion on August 15,
2016.
Appellant raises one issue on appeal: “Was the evidence insufficient to
support the finding that Appellant was an SVP?” Appellant’s Brief at 3. Our
standard of review for a sufficiency challenge to an SVP designation is well
established.
In order to affirm an 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[n SVP]. As with any
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sufficiency of the evidence claim, we view all evidence and
reasonable inferences therefrom in the light most favorable to
the Commonwealth. 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.
Commonwealth v. Hollingshead, 111 A.3d 186, 189 (Pa. Super. 2015)
(quoting Commonwealth v. Baker, 24 A.3d 1006, 1033 (Pa. Super. 2011),
aff’d, 78 A.3d 1044) (Pa. 2013) (citation omitted) (alteration in original)).
After a defendant has been convicted of an enumerated offense,2 the
trial court orders the Sexual Offender Assessment Board (“SOAB”) to
conduct an assessment to determine whether a defendant should be
designated an SVP. Id. (citing Commonwealth v. Stephens, 84 A.3d
1034, 1038-39 (Pa. Super. 2013)). At the SVP hearing the Commonwealth
must establish that the defendant has been convicted of an enumerated
offense, and has “a mental abnormality or personality disorder that makes
the person likely to engage in predatory sexually violent offenses. . ..
Moreover, there must be a showing that the defendant’s conduct was
predatory.” Id. (quoting Stephens 84 A.3d at 1038-39). When conducting
the assessment, the SOAB is required to address a number of factors. 42
Pa.C.S.A. § 9799.24(b).3 Additionally, the Commonwealth’s expert is
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2
See 42 Pa.C.S.A. § 9799.14.
3
An assessment shall include, but not be limited to, an examination of the
following:
(1) Facts of the current offense, including:
(Footnote Continued Next Page)
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(Footnote Continued)
(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.
(4) Factors that are supported in sexual offender assessment
field as criteria reasonably related to the risk of re-offense.
42 Pa.C.S.A. § 9799.24.
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required to give an opinion regarding the defendant’s propensity to reoffend.
Hollingshead, 111 A.3d at 189.
In the matter sub judice, the Commonwealth presented the report of
Dr. Barry Zakireh of the SOAB.4 See N.T. Sentencing, 4/15/16, at Ex. C-1.
After review of the record, including the report of Dr. Zakireh, the briefs, and
the law, the trial court’s August 15, 2016 opinion adequately addresses
Appellant’s sufficiency claim. Appellant was convicted of an enumerated
offense, the report of Dr. Zakireh addresses all of the factors listed in section
9799.24(b) of the act, Dr. Zakireh determined that Appellant has a
personality disorder that makes Appellant likely to engage in predatory
conduct, and Appellant’s conduct was predatory in nature. See id.
In conclusion, we find that Appellant’s claim is meritless. Therefore we
affirm the judgment of sentence. We direct that a copy of the trial court’s
August 15, 2016 opinion be attached to any future filings in this case.
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The parties stipulated as to the admissibility of the report and that if called
to testify Dr. Zakireh would testify consistent to the report. N.T. Sentencing,
4/15/16, at 8. The trial court admitted the report into evidence as Ex. C-1.
Id.
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J-S17027-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2017
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Circulated 04/27/2017 05:33 PM
COURT OF COMMON PLEAS PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION -CIVIL
COMMONWEALTH OF PENNSYLVANIA
CP-51-CR-0002716-2015
v.
VINCENT YANT FILED
AUG 1 6 2016
Appeal No.: 1393 EDA 2016
Criminal Appeals Unit
OPINION First Judicial District of PA
Appellant, Vincent Yant, appeals from the judgment of sentence entered
on April 15, 2016, and the Court's determination that he meets the criteria for
classification as a Sexually Violent Predator based upon the evaluation by the
Sexual Offender Assessment Board. A summary of the facts and procedural
history follows.
Appellant was accepted into the Mental Health Court (MHC) on July 11,
2013 after a mental health and psychiatric evaluation determined that he was
not competent to go to trial on robbery and related charges. As is the policy in
MHC, appellant's case was reviewed every 30-60 days to monitor his mental
health treatment and competency. Appellant subsequently regained
competency, and, on April 10, 2014, entered a guilty plea to robbery in
exchange for a sentence of 11 1/2-23 months incarceration followed by 4 years
probation (CP-51-CR-0008263-2012). Appellant was reported to be in
compliance with his treatment and medication programs at the 5/22/ 14,
6/2/14, 7/3/14, 8/21/14, 9/4/14 and 10/2/14 review hearings. On
Ott
November 16, 2014, appellant was arrested and charged with criminal attempt
- kidnaping for ransom; unlawful contact with a minor - sexual offense;
unlawful restraint/serious bodily injury, false imprisonment; stalking -
repeatedly commit acts to cause fear; simple assault; recklessly endangering
another person; harassment - subject other to physical contact; and indecent
assault, with a criminal act of 10/26/14 (CP-51-CR-0002716-2015).1 On that
same date, appellant was also charged with indecent exposure and harassment
with a criminal act date of August 31, 2014 (MC-51-CR-0039181-2014).2 The
new arrests represented potential direct violations of the robbery sentence, and
a violation hearing was scheduled before the Court. Pursuant to a rule 701
motion for consolidation, the new charges were transferred to MHC, and, on
October 13, 2015, following a thorough colloquy, appellant entered a negotiated
guilty plea to false imprisonment, stalking, indecent assault, indecent exposure
and harassment. The facts to which appellant pleaded guilty were, in CP-51-
CR- 0002716-2015, that he followed the seventeen year old female victim, a
stranger to him, after she got off of public transportation, grabbed her and
attempted to drag her into an empty lot and assault her; the victim's screams
caught the attention of a passerby, and in MC-51-CR-0039181-2014, that he
followed the victim, also a stranger to him, after she exited public
transportation, exposed himself and began masturbating, then fled. Appellant
was also made aware that the guilty plea would subject him to a sexually
18 Pa.C.S.A. §§§ 901(a); 6318 (a)(1); 2902 (a)(1); 2903 (a); 2709.1 (a)(1); 2701(a); 2705; 2709
(a)(1); and 3126 (a)(2), respectively.
218 Pa.C.S.A. §§ 3127 (a); 2709 (a)(1)
2
violent predator (SVP) assessment pursuant to Pennsylvania's version of
"Megan's Law," the Sex Offender Registration and Notification Act, 42 Pa.C.S.A.
§ 9799.10 et. seq. (the Act). Sentencing was deferred pending receipt of a
presentence investigation report, guideline calculation, mental health
evaluation and a Megan's Law assessment.
Appellant's SVP hearing was held on April 15, 2016. At that time, there
was a stipulation by and between counsel that if Barry Zakireh, Ph.D., a duly
appointed member of the Pennsylvania Sex Offender Assessment Board
(SOAR), was present, he would testify consistent with the report, and, instead
of live testimony, counsel would just refer to the report. In his report, Dr.
Zakireh determined to a reasonable degree of professional certainty that
appellant met the statutory criteria for classification as a sexually violent
predator. The Court thoroughly reviewed the report from Dr. Zakireh and
appellant's comments to the Court at the hearing. At the conclusion of the SVP
hearing, the Court found that the Commonwealth has met its burden and that
appellant met the criteria to be classified as a sexually violent predator.
Thereafter, appellant was sentenced to 3 1/2-7 years incarceration followed by
10 years probation.3 This appeal followed.
Appellant first complains that the evidence was insufficient to sustain
the finding that he is a sexually violent predator. As a general rule, [the]
standard of review of a trial court's evidentiary ruling ... is limited to
The violation hearing was conducted following the SVP hearing. Appellant was found to be in
direct violation of his probation.
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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 or such lack of
support so as to be clearly erroneous. Commonwealth v. Dengler, 586 Pa. 54,
65, 890 A.2d 372, 379 (2005). The scope of review is plenary. Commonwealth
v. Brooks, 7 A.3d 852 (Pa.Super.2010). 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. Prendes, 2014 PA Super 151, 97 A.3d 337,
356, (2014) citing 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. Id.A "sexually violent predator" is defined, in pertinent part, as "[a] person
who has been convicted of a sexually violent offense ... and 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 person likely to engage in predatory sexually violent offenses." 42 Pa.C.S.A.
§ 9792; Commonwealth v. Fletcher, 947 A.2d 776, 776-77 (Pa.Super.2008).
The process of determining SVP status is statutorily -mandated and well-
defined. To deem an individual a sexually violent predator, the Commonwealth
must first show that [the individual] has been convicted of a sexually violent
offense as set forth in 42 Pa.C.S.A. § 9799.14. Commonwealth v. Askew, 907
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A.2d 624, 629 (Pa.Super.2006). Secondly, the Commonwealth must show by
clear and convincing evidence that the individual has a mental abnormality or
personality disorder that makes [him] likely to engage in predatory sexually
violent offenses. Id. An 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). At the core of the expert's assessment is a
detailed list of factors, which are mandatory and are designed as "criteria by
which ... [the] likelihood [of reoffense] may be gauged." Commonwealth v. Bey,
841 A.2d 562, 566 (Pa.Super.2004); Commonwealth v. Dixon, 907 A.2d 533,
535-36 (Pa.Super.2006). The following factors should be considered:
(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 of the individual.
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(ii) Use of illegal drugs by the individual.
(iii) Any mental illness, mental disability or mental abnormality.
Behavioral characteristics that contribute to the individual's
(iv)
conduct.
(4) Factors that are supported in a sexual offender
(i) assessment field as criteria reasonably related to the risk of
reoffense.
42 Pa.C.S.A. § 9795.4(b). Commonwealth v. Askew, 2006 PA Super 239, 907
A.2d 624, 629-30 (2006).
When the Commonwealth meets this burden, the trial court then makes the
final determination on the defendant's status as an SVP.
Here, the first criteria was met. Appellant entered a knowing intelligent
and voluntary guilty plea to indecent assault, a tier II sexual offense under 42
Pa.C.S.A. § 9799.14, as evidenced by the extensive colloquy and the signed
guilty plea forms. (N.T. 10/13/16/ pg. 5-19) Therefore, following appellant's
guilty plea, but before sentencing, the Court was required to order that
appellant be assessed by the SOAR to determine if he would be classified as a
sexually violent predator pursuant to 42 Pa.C.S.A. § 9799.24(a). See
Commonwealth v. Dixon, 907 A.2d 533, 535-36 (Pa.Super.2006)(The triggering
event is a conviction for one or more offenses specified in 42 Pa.C.S.A. §
[9799.14], which, in turn, prompts the trial court to order an SVP assessment
by the SOAB.).
The Commonwealth then introduced the SOAB assessment report from
Dr. Zakireh into evidence without objection. (N.T. 04/15/16 pg. 8) The Act
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requires that the Dr. Zakireh consider the aforementioned factors during the
course of his assessment to highlight the appellant's offense pattern and
determine whether appellant suffers from a mental abnormality or personality
disorder that makes him likely to engage in predatory sexually violent offenses..
A mental abnormality under the Act is defined as "[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. § 9799.12. Commonwealth v. Prendes,
2014 PA Super 151, 97 A.3d 337, 355-56 (2014). Predatory conduct is defined
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.Dr. Zakireh determined, to a reasonable degree of psychological certainty
after evaluating the facts of the offense, appellant's prior criminal history,
appellant's age, mental health history and other behavioral information, that
appellant suffers from a mental abnormality or personality disorder that makes
him likely to engage in predatory sexually violent offenses. Pursuant to his
assessment, Dr. Zakireh identified a "demonstrated pattern of evolving,
repetitive and persistent sexual and non -sexual criminal behavior including
severe coercion." He opined that appellant has "significant difficulty in
controlling his aggressive sexual urges, impulses, unruly behavior and
disregard for social standards/norms, including coercive sexual urges,
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impulses and behavior which is related to his disregard and lack of concern for
the suffering and distress, or the impact of his actions on the victims and in his
historical inability to modify his behavior based on negative consequences or
experiences." (See SOAB Assessment pg. 8). Based upon his evaluation of
appellant's information available to him, Dr. Zakireh determined that appellant
meets the criteria set forth in the Diagnostic and Statistical Manual for Mental
Disorders, (DSM-5) for antisocial personality disorder, a category consistent
with the legal conception of a personality disorder as defined by the statutes.
(See SOAB Assessment pg. 8). Accordingly, the evidence was sufficient for the
Court to find that the Commonwealth had met its burden to show by clear and
convincing evidence that appellant meets the SVP criteria and this claim fails.
Appellant next complains that the SVP finding should be reversed
because it is predicated upon the prosecutor's erroneous statement that the
SOAB report indicated that appellant exceeded the means necessary to commit
the crime. This complaint is meritless. During the SVP hearing, the prosecutor
stated that appellant exceeded the [means] necessary to achieve the offense.
(N.T. 04/15/16 pg. 10) The written report actually indicated that there was
insufficient evidence that appellant exceeded the means necessary to achieve
the offense as there was "no evidence of gratuitous violence or significantly
beyond the instrumental range." (SOAB Assessment pg. 3) Notwithstanding
that it is well settled that the statements of counsel are not evidence, the Court
explicitly stated on the record what information was used to make the
determination that appellant met the criteria for classification as an SVP; that
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it had thoroughly reviewed the report from Dr. Zakireh where he conducted a
thorough evaluation of the facts and history and concluded that based on all of
the factors specified in the Act, that to a reasonable degree of psychological
certainty appellant meets the criteria set forth for classification as a sexually
violent predator. (N.T. 04/15/16 pg. 15-16) Therefore, the SVP finding was
based upon the SOAB assessment, not the prosecutor's argument.
Consequently, this claim warrants no relief.
For the foregoing reasons, appellant's claims on appeal are meritless.
BY THE COURT:
Aeta g
SHEILA WOODS -SKIPPER, PJ
Orr
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