Com. v. Kelley, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AUSTIN TEXAS HOUSTON KELLEY :
:
Appellant : No. 271 MDA 2022
Appeal from the Judgment of Sentence Entered January 20, 2022
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0003462-2018
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY McLAUGHLIN, J.: FILED JANUARY 24, 2023
Austin Texas Houston Kelley appeals from the judgment of sentence
entered following his convictions for three counts of unlawful contact with a
minor; two counts each of indecent assault, criminal solicitation to commit
statutory sexual assault, and criminal trespass; and one count each of
burglary, involuntary deviate sexual intercourse, aggravated indecent assault,
and statutory sexual assault.1 Kelley argues the trial court erred in denying
his motion to sever, permitting the Commonwealth to present expert
testimony on the dynamics of sexual violence, and determining that he was a
sexually violent predator (“SVP”). We affirm.
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* Former Justice specially assigned to the Superior Court.
118 Pa.C.S.A. §§ 6318(a)(1), 3126(a)(8), 902(a), 3503(a)(11), 3502(a)(i),
3123(a)(7), 3125(a)(8), 3122.1(a)(1), respectively.
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The Commonwealth filed one Information, listing charges related to
three victims. On August 27, 2019, the parties informed the court that the
case was ready for trial, and the court scheduled trial for September 9, 2019.
On August 27, the Commonwealth indicated to Kelley’s counsel that she would
seek to introduce expert testimony. Omnibus Pre-Trial Motion, filed Sept. 5,
2019, at ¶ 10. The following day, August 28, 2019, the Commonwealth
provided written notice of its intent to present expert testimony on
“generalities with regard to sexual offender/predator behaviors.” Motion to
Continue Pretrial/Trial, filed Sept. 4, 2019, at Exh. A. The Commonwealth
stated in the written notice that it was late because the parties had been
working toward a plea agreement and, therefore, “there [had been] no need
to pursue the retention of an expert.” Id. The Commonwealth attached to the
notice a copy of the expert’s curriculum vitae and stated it would forward a
report when it received one. Id. Kelley filed an unopposed motion to continue,
which was granted.2
In September 2019, Kelley filed an omnibus pre-trial motion, which he
later amended. The omnibus motion included, among other things, a motion
to sever and a motion to preclude the expert testimony.
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2Trial originally was rescheduled for November 2019, but, following additional
continuances, did not occur until October 2020.
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The parties submitted briefs regarding the motion to sever. The trial
court summarized the alleged facts from the hearing on the pretrial motion to
sever as follows:
[I]n August 2016, [Kelley] met M.M. at the Midway Skating
Rink when she was approximately 14 years old. He then
communicated with her via social media, utilizing the screen
name “Superman100” on Facebook, and referring to himself
as a “superhero.” On February 9, 2017, [Kelley] went to
M.M.’s house, and entered through her bedroom window;
he did not have her parents’ permission to be in the home.
While M.M. denies any sexual contact between her and
[Kelley], her father did see [Kelly] in M.M’s bed.
[Kelley] also met 15-year-old K.W. at the Midway Skating
Rink in August of 2016, following which he communicated
with her as “Superman.” Around the same time period,
[Kelley] met 14-year-old S.B. at the Midway Skating Rink,
and began an ongoing sexual relationship with her, which
lasted for approximately eight months.
On one particular occasion, March 12, 2017, [Kelley]
climbed in the window of S.B.’s bedroom, while K.W. was
visiting S.B. [Kelley] was watching a movie on S.B.’s bed
with the two girls, when he attempted to kiss K.W., saying
he was a superhero and would “save her.” He touched her
butt and breasts, and put his hands and mouth on her
vagina; K.W. became very uncomfortable and moved to the
floor. [Kelley] and S.B. then engaged in sexual conduct on
S.B.’s bed.[1]
1Since his arrest, [Kelley] and S.B. have continued to
correspond in writing, with [Kelley] continuing to
utilize his “superhero” persona.
Trial Court Opinion, filed Oct. 7, 2020, at 1-2.
The trial court denied the motion to sever. It found the Commonwealth
had demonstrated the existence of a common scheme, plan, or design, the
evidence would support a finding of Kelley’s intent, and the jury would be
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capable of avoiding confusion. It also found the consolidation would not unduly
prejudice Kelley. Id. at 4-5.
In the motion to preclude the expert testimony, Kelley claimed, among
other things, that the Commonwealth provided its notice of expert testimony
late, which hindered his ability to respond to the testimony. He also argued
that the proposed basis of the testimony was “likely to be confusing, vague,
and [was] not opinion testimony relevant to the facts of [the] case.” Amended
Omnibus Pre-Trial Motion, filed Nov. 7, 2019, at ¶ 11. At the hearing, Kelley
again argued the testimony was not relevant and would be confusing to the
jury. N.T., Oct. 14, 2020, at 24. The Commonwealth asserted it informed
Kelley of its intention to present expert testimony after defense counsel
certified the case for trial, stating that the late notice was due to the
Commonwealth’s impression the case would be resolved by plea agreement.
The trial court summarized the testimony from the hearing on the expert
testimony as follows:
At a hearing on the expert witness issue, testimony was
received from the Commonwealth’s proposed expert,
Matthew Shollenberger, Ph.D., P.C., and two
Commonwealth exhibits were admitted in the form of his
curriculum vitae and his report.
Dr. Shollenberger testified that he was a sex offender
counselor, with a Ph.D. in counseling, who had been working
with sex offenders for 25 years, had been approved as a
provider by Pennsylvania’s Sexual Offenders Assessment
Board since 2002, and had presented expert testimony in
court hundreds of times. The gist of his opinions of
pertinence to the present case was contained in a report
dated September 17, 2019:
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This letter is a very brief summary of sexual offenders’
characteristics based on over 25 years of education
and experience: Sexual exploit is about control, and
overwhelmingly statically [sic] the sexual exploiter is
a biological male. Most sexual offenders have multiple
victims, sometimes dozens, due to the secrecy of the
crime and the reluctance for victims to come foreword
[sic], hence encouraging the sexual predator to
believe he has gotten away with the crime(s). Sexual
predators will most likely tell their victims to remain
secretive about the sexual abuse and/or threaten
them with retaliation should they tell. The large
majority of victims are not strangers; sexual
predators get to know their victims (as quickly as
possible) in order to assess vulnerability and establish
trust. The sexual predator may use special favors like
excessive attention, praise, favoritism, or gifts to
establish trust. They use the trust that has been
established as a control mechanism, exploiting the
victims' feelings of guilt, loyalty, or dependency.
Adolescents who have special needs, are having
identity issues, feeling unloved, or having peer issues
are vulnerable to the attention of a sexual predator.
Many times, pedophiles in particular do not relate to
peers their own age; they do not think or feel like a
responsible adult, and they “fit in” with younger peers.
Pedophiles tend to frequent locations where children
and/or adolescents are found with minimal
supervision, intent on preying upon naive,
impressionable, and vulnerable victims. Sexual
predators rationalize their crimes to themselves and
minimize their crimes to other[s] when caught. Lastly,
many sexual predators are narcissistic[.] Narcissism
is clinically defined as a grandiose sense of self-
importance and preoccupation with fantasies of
power, a belief that he is unique, has a need for
excessive admiration, has a sense of entitlement, a
lack of empathy, envious of others and an arrogant
attitude.
On cross-examination, Dr. Shollenberger was acknowledged
by [Kelley’s] counsel to be an expert in the field of sexual
offense counseling.
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Trial Court Opinion, filed Apr. 16, 2022, at 14-15 (alterations in original)
(“1925(a) Op.”).
The trial court denied the motion to preclude the expert testimony and
permitted the Commonwealth to present the expert opinion of Dr. Matthew
Shollenberger. However, it put limits on his testimony and barred him from
testifying “regarding specifics of this case.” Order, filed Oct. 15, 2020.
After a trial, the jury convicted Kelley of the above-referenced offenses.3
The trial court sentenced him to an aggregate sentence of 18 to 50 years’
incarceration.4 It then held an SVP hearing and heard testimony from both an
expert presented by the Commonwealth and an expert presented by Kelley.
The Commonwealth’s expert, Corrine Scheuneman, M.A., L.P.C., a
member of Pennsylvania’s Sexual Offenders Assessment Board (“SOAB”),
opined that Kelley has hebephilia, which is a condition where “an individual
[is] sexually attracted to adolescents whose pubescence or secondary sex
characteristics are just emerging.” N.T., July 2, 2021, 17, 20. She stated this
was considered a lifetime disorder. Id. at 21. Scheuneman testified that
____________________________________________
3Kelley had been charged with two counts of burglary. The jury found Kelley
not guilty of one count of burglary.
4 The trial court originally sentenced Kelley to an aggregate of 28 to 56 years’
incarceration. Kelley filed a post-sentence motion challenging the grading of
two of the unlawful contact with minor convictions and the mandatory
minimum applied to the involuntary deviate sexual intercourse conviction. The
trial court granted the motion, and re-sentenced Kelley to an aggregate
sentence of 18 to 50 years’ incarceration.
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hebephilia is not listed as a disorder in the DSM-V.5 She stated that although
a lot of paraphilic disorders are not listed in the DSM-V, individuals “still may
suffer from” the disorders and the disorders “might be addressed in the clinical
setting.” Id. at 18. She stated that “there are so many that it would be
exhaustive to print them all on the pages of the DSM.” Id. at 18. She further
testified that she uses the DSM for diagnosing a person in a clinical setting,
but at the hearing she “was charged with . . . mak[ing] a conclusion that’s
consistent with the law and the way the law defines mental abnormality,
personality disorder.” Id. at 34. She pointed out that “hebephilia has been
accepted in courts of law as significant because [they are] not just talking
about urges and arousal patterns that we might treat in a clinical setting, but
rather [they] are talking about behavior that follows those urges and arousing
patterns.” Id.
Scheuneman discussed the statutory factors for determining whether a
person should be classified as an SVP. She noted, among other things, that:
the offense included multiple victims with multiple sex acts; Kelley used
coercion and manipulation and broke into homes to accomplish the offenses;
the victims were between 13 and 15 years of age; and Kelley befriended the
victims and engaged in conversation to identify emotional vulnerability. She
acknowledged that Kelley did not have a prior history of sexual offenses, and
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5 Diagnostic and Statistical Manual of Mental Disorders, Fifth Ed.
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that he was 19 years of age at the time of the offenses. See id. at 8-24; Trial
Court Opinion, at 17-19.
Thomas F. Haworth, Ph.D., L.P., a former member of the Sexual
Offenders Assessment Board, testified that hebephilia is not a disorder
recognized in the DSM-V and “there is enormous controversy within the
scientific field around the validity of hebephilia being a paraphilic disorder.”
Id. at 52, 54. He testified that he believed Kelley’s conduct was attributable
to a previously undiagnosed condition of bipolar disorder and “histrionic
personality traits,” which both could be treated through pharmacotherapy and
cognitive behavioral therapy. See id. at 48, 61; Trial Court Opinion, at 17-19.
Dr. Haworth was able to interview Kelley and administer psychometric tests.
The trial court found that the Commonwealth had proven, by clear and
convincing evidence, that Kelley was an SVP. Kelley timely appealed.
Kelley raises the following issues:
I. Did the trial court err in denying [Kelley’s] motion to
sever, when one course of conduct against a victim differed
substantially from the common scheme alleged by the
Commonwealth for the remaining two victims?
II. Did the trial court err in permitting the Commonwealth to
present expert testimony when the testimony elicited was
confusing to the finder of fact when applied to so many
complainants with varying and unique allegations of
misconduct by [Kelley]?
III. Did the trial court err in determining that [Kelley] is a
sexually violent predator?
Kelley’s Br. at 7 (suggested answers and unnecessary capitalization omitted).
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In his first issue, Kelley argues the trial court erred in denying his motion
to sever. He argues that “the trial court should have severed at the very least
M.M’s charges from those of K.W. and S.B.” Id. at 23. He points out there was
no evidence at the severance hearing that M.M. and Kelley engaged in sexual
behavior and he alleges he did not “groom” her or swear her to secrecy. Kelley
maintains that M.M. was not a friend of K.W. and S.B. and did not observe
any interactions between S.B. or K.W. and Kelley. He claims the events with
M.M. were totally separate, with no common plan or scheme. He argues the
evidence regarding K.W. and S.B.’s allegations served “only to present
propensity to commit crimes of sexual misconduct.” Id. at 24. He further
argues the expert testimony would not have been permissible at M.M.’s trial
because it would have been irrelevant. He maintains the evidence was most
relevant to S.B.’s allegations. He maintains that by joining the trial of M.M.’s
allegations with the trial for K.W. and S.B.’s allegations the trial court
“muddied the waters of the facts and abused its discretion in the interest of
judicial economy.” Id. at 25.
We review a trial court’s decision to deny a motion for severance for an
abuse of discretion. Commonwealth v. Dozzo, 991 A.2d 898, 901
(Pa.Super. 2010) (quoting Commonwealth v. Melendez–Rodriguez, 856
A.2d 1278, 1282 (Pa.Super. 2004) (en banc)).
Pennsylvania Rule of Criminal Procedure 582 governs the joinder of
separate informations for trial and provides:
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(1) Offenses charged in separate indictments or
informations may be tried together if:
(a) the evidence of each of the offenses would be
admissible in a separate trial for the other and is
capable of separation by the jury so that there is no
danger of confusion; or
(b) the offenses charged are based on the same act
or transaction.
Pa.R.Crim.P. 582(A)(1).
Rule 583 governs severance of offenses and provides:
The court may order separate trials of offenses or
defendants, or provide other appropriate relief, if it appears
that any party may be prejudiced by offenses or defendants
being tried together.
Pa.R.Crim.P. 583. “Under Rule 583, the prejudice the defendant suffers due
to the joinder must be greater than the general prejudice any defendant
suffers when the Commonwealth’s evidence links him to a crime.” Dozzo, 991
A.2d at 902 (quoting Commonwealth v. Lauro, 819 A.2d 100, 107
(Pa.Super. 2003)). Rather, the prejudice required under Rule 583 is “that
which would occur if the evidence tended to convict [the] appellant only by
showing his propensity to commit crimes, or because the jury was incapable
of separating the evidence or could not avoid cumulating the evidence.” Id.(quoting Lauro, 819 A.2d at 107).
Reading Rules 582 and 583 together, the Pennsylvania Supreme Court
determined that to decide whether to grant severance, courts must ask
whether the evidence would be admissible in separate trials, the evidence is
capable of separation by the jury, and the defendant will be unduly prejudiced
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if the offenses are tried together. Commonwealth v. Ferguson, 107 A.3d
206, 210-11 (Pa.Super. 2015) (quoting Commonwealth v. Collins, 703 A.2d
418, 422 (Pa. 1997)) (brackets in original).
Evidence of other crimes or bad acts is not admissible to prove that the
defendant acted “in conformity with those acts or to demonstrate a criminal
propensity.” Commonwealth v. Brown, 52 A.3d 320, 325 (Pa.Super. 2012);
Pa.R.Evid. 404(b). The evidence, however, may be admissible for another,
proper purpose. Brown, 52 A.3d at 325. One such proper purpose is to
demonstrate a common plan, motive, scheme, or intent. Dozzo, 991 A.2d at
902 (quoting Collins, 703 A.2d at 422-23).
Here, the trial court analyzed the three factors and denied the motion
to sever the charges:
In looking at the first prong of the . . . test, this court will
examine whether [Kelley’s] conduct constituted a common
scheme, plan or design, whether the evidence would
support proving [Kelley’s] intent, and whether the evidence
would be admissible in separate trials. This court concludes
that the Commonwealth has demonstrated the existence of
a common scheme, plan or design evidenced in [Kelley’s]
conduct, and demonstrated that this evidence would
support finding [Kelley’s] criminal intent. Specifically,
[Kelley’s] conduct with regard to meeting his alleged minor
victims at a local skating rink, adopting a “superhero”
persona with his victims via referring to himself as
“Superman” and claiming a desire to “help” them, sneaking
into the alleged victims’ residences by way of bedroom
windows, acting without any knowledge or consent from the
alleged victims’ parents, and communicating with his
victims while attempting to isolate them from family and
support structures through both social media and written
mail represent a common scheme, plan or design.
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Therefore, the Commonwealth has met the first prong of the
. . . test.
Regarding the second prong . . ., it is clear that the jury
would be capable of avoiding confusion, and be able to
separate the different allegations. “Where a trial concerns
distinct criminal offenses that are distinguishable in time,
space and the characters involved, a jury is capable of
separating the evidence.” Com. v. Collins, supra, 550 Pa.
at 56. There are three separate alleged victims, and
separate crimes connected with each alleged victim over a
span of roughly nine months. The jury will, presumably,
hear from each alleged victim, and will be able to evaluate
their credibility regarding the individual offenses related to
each of them. Therefore, the Commonwealth has met the
second prong of the . . . test.
Finally, under the third prong of the . . . test, while [Kelley]
may suffer some prejudice as a result of the jury hearing
allegations involving three alleged victims, regarding
incidents spread over a nine month period, he will not be
unduly prejudiced by consolidation. . . .
Here, as discussed previously, the jury would not be
confused by the evidence submitted during a consolidated
trial, and the Commonwealth is not seeking to convict
[Kelley] on the basis of any purported propensity to commit
crimes. Therefore, the Commonwealth has passed the . . .
test, and [Kelley’s] motion to sever should properly be
denied.
Trial Court Opinion, filed Oct. 7, 2020, at 4-5.
The trial court did not abuse its discretion. The evidence would have
been admissible in separate trials, as it was admissible to establish a common
plan, motive, scheme, or intent. Further, the jury could separate the evidence,
avoiding the danger of confusion. In addition, Kelley would not be unduly
prejudiced by the consolidation of offenses, as any prejudice would not be
greater than other evidence linking him to the crime and the Commonwealth
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was not seeking to convict Kelley based on a purported propensity to commit
crimes.
Kelley next claims the court erred in allowing the Commonwealth to
present expert testimony on grooming behavior. He argues the expert
testimony “was dumped on defense counsel on the eve of trial,” which limited
Kelley’s ability to contest it and hire an expert. Kelley’s Br. at 25. He further
claims the expert testimony focused on Kelley’s “savior complex” and
“‘Superman’ persona that was alleged to be predatory,” which he alleges had
nothing to do with M.M. Id. at 26. He argues “[t]he wide range of allegations
made by each complainant rendered the expert testimony wholly confusing as
to how it was relatable to any single victim.” Id.
“[T]he admission of expert testimony is a matter left largely to the
discretion of the trial court, and its rulings thereon will not be reversed absent
an abuse of discretion.” Commonwealth v. Watson, 945 A.2d 174, 176
(Pa.Super. 2008) (quoting Commonwealth v. Brown, 596 A.2d 840, 842
(Pa.Super. 1991)).
Section 5920 of the Judicial Code governs expert testimony in criminal
proceedings. Where a defendant is charged with certain offenses, including
sexual offenses, solicitation, corruption of minors, and unlawful contact with
minors, Section 5920 permits a witness to be qualified as an expert if the
witness has “specialized knowledge beyond that possessed by the average
layperson” based on the witness’s experience, specialized training, or
education in “criminal justice, behavioral sciences or victim services issues,
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related to sexual violence or domestic violence.” 42 Pa.C.S.A. § 5920(b)(1).
The witness may be so qualified if the proffered testimony will assist the trier
of fact “in understanding the dynamics of sexual violence or domestic violence,
victim responses to sexual violence or domestic violence and the impact of
sexual violence or domestic violence on victims during and after being
assaulted.” Id.
The trial court cited Section 5920 and concluded that the General
Assembly expressly authorized “the presentation of expert testimony in a case
of the present type,” and the court permitted “Dr. Shollenberger’s testimony
as proffered by the Commonwealth, subject to the restriction imposed in the
order,” that is, he was not permitted to testify regarding specifics of the instant
case. 1925(a) Op. at 25. It further concluded that any prejudice to Kelley due
to the timing of the notice, would have been “obviated by the passage of more
than a year from the date of the notice until trial.” Id.
Kelley’s challenges to the admission of the testimony are meritless.
Section 5920 permits the use of expert testimony about the dynamics of
sexual violence in cases, such as the current case, where sex crimes are
charged. Here, the expert provided testimony of the sort contemplated by the
statute. Further, although the Commonwealth did not provide notice of its
intent to use an expert until shortly before the initial date for trial, the trial
was continued for more than a year following the retention of the expert,
giving Kelley time to respond to the testimony.
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In his final claim, Kelley contends that the evidence that he was an SVP
did not rise to the level of clear and convincing evidence. He argues that his
expert, Dr. Haworth, “presented compelling testimony that due to the age of
Mr. Kelley and his specific mental health conditions needing valid and
accessible treatment regimens, that it is hard to say the Commonwealth met
its burden of proof by a clear and convincing standard.” Kelley’s Br. at 26-27.
Kelley argues that Dr. Haworth had more experience as an evaluator and more
education than Ms. Scheuneman and had conducted an in-person examination
of Kelley. He argues that Dr. Haworth “did not try to categorize [] Kelley with
a label that does not have general acceptance in the greater scientific
community.” Id. at 27. Kelley further claims that he “is an immature man-
child who has delusion of grandeur amplified by bipolar disorder, not that he
is an incurable sociopath who will always be a sexually violent predator.” Id.
He points out he was 19 at the time of the crimes and claims that when K.W.
asked him to stop, he did.
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)).
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To be classified as an SVP, the Commonwealth must prove by clear and
convincing evidence that the defendant has “a mental abnormality or
personality disorder that makes [him] likely to engage in predatory sexually
violent offenses.” 42 Pa.C.S.A. § 9799.12 (“Sexually violent predator”).
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 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. (“Mental abnormality”) 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. (“Predatory”); 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.
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(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 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,
1168-69 (Pa.Super. 2011). We have found that “a trial court may conclude,
based upon the expert testimony and facts in a given case, that a hebephilia
diagnosis is sufficient to find a defendant has a mental abnormality.”
Hollingshead, 111 A.3d at 193. We concluded that “the debate about
surrounding hebephilia diagnoses, and their use in SVP proceedings, goes to
the weight of the expert witness’ testimony.” Id.- 17 -
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The trial court found the Commonwealth proved by clear and convincing
evidence that Kelley was an SVP:
In the present case, an independent review of the factors to
be considered in a sexually violent predator determination,
the opinions of the experts, and the caselaw concerning
hebephilia led th[e trial] court to concur with the factor-
oriented analysis of the Commonwealth’s expert, including
her diagnosis, and to find that the Commonwealth had met
its burden of proving that [Kelley] met the criteria for a
sexually violent predator by clear and convincing evidence.
1925(a) Op. at 27-28.
We conclude the Commonwealth presented sufficient evidence to
support the court’s conclusion Kelley was an SVP. Scheuneman testified to her
analysis of the factors and concluded he suffered from a mental disorder and
his actions were predatory. This testimony, which the court credited, supports
its conclusion that Kelley was an SVP. Any controversy regarding hebephilia
diagnoses in SVP proceedings goes to the weight, not the sufficiency, of the
testimony. Hollingshead, 111 A.3d at 193.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/24/2023
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