Com. v. Schweikert, M.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
MARTIN SCHWEIKERT, : No. 947 MDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, May 23, 2016,
in the Court of Common Pleas of Berks County
Criminal Division at No. CP-06-CR-0003232-2015
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 14, 2017
Martin Schweikert appeals from the judgment of sentence of May 23,
2016, following his conviction of one count each of involuntary deviate
sexual intercourse (“IDSI”)1 and indecent assault.2 We affirm.
The trial court has summarized the procedural history of this matter as
follows:
[Appellant] was charged with Rape, four
counts of [IDSI], four counts of Indecent Assault,
two counts of Endangering Welfare of Children and
two counts of Corruption of Minors, arising from
incidents alleged to have occurred between
January 7, 1995, and December 31, 200[5]. On
October 13, 2015, Appellant entered a [negotiated]
* Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. § 3123(a)(6).
2
18 Pa.C.S.A. § 3126(a)(7).
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guilty plea to one count of [IDSI] and one count of
Indecent Assault. Appellant was sentenced to serve
not less than 4½ years nor more than 10 years in a
State Correctional Facility followed by 5 years of
probation. Additionally, this Court ordered that the
State Sexual Offenders Assessment Board perform
an assessment of the Appellant to determine
whether he should be classified as a sexually violent
predator [(“SVP”)]. A hearing was held on May 23,
2016, and, at that time, this Court found by clear
and convincing evidence that the Appellant met the
criteria to be classified as a[n] [SVP]. On June 1,
2016, Appellant filed a Motion for Reconsideration of
this Court’s determination and order of May 23,
2016. On June 6, 2016, this Court denied
Appellant’s Motion for Reconsideration.
On June 1[0], 2016, the Appellant applied for
leave to appeal in forma pauperis and filed a
Notice of Appeal to the Superior Court of
Pennsylvania from this Court’s order of May 23,
2016.[3] On June 16, 2016, this Court ordered the
Appellant to file a Concise Statement of Matters
Complained of on Appeal, pursuant to Pennsylvania
Rule of Appellate Procedure 1925(b). On June 23,
2016, the Appellant filed a Concise Statement of
Errors Complained of on Appeal alleging that this
Court erred in determining that the Appellant is a[n]
[SVP].
Trial court opinion, 8/3/16 at 1-2 (footnotes omitted).
Appellant has raised the following issue for this court’s review:
3
We note that although appellant pled guilty and was sentenced on October 13,
2015, he waived his right to have an SVP assessment done prior to sentencing,
and no order determining his SVP classification was entered at that time. An
SVP hearing was held on May 23, 2016, and on May 27, 2016, the trial court
entered its order classifying appellant as an SVP. Therefore, appellant’s notice
of appeal filed June 10, 2016, is timely. See Commonwealth v. Schrader,
141 A.3d 558, 561 (Pa.Super. 2016) (“We conclude that where a defendant
pleads guilty and waives a pre-sentence SVP determination, the judgment of
sentence is not final until that determination is rendered.”).
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Whether the trial court erred in concluding that
Appellant should be classified as a[n] [SVP] where
the Commonwealth presented no evidence that
Appellant’s pedophilic disorder caused a lack of
volitional or emotional control associated with a
mental abnormality defined by 42 Pa.C.S.A.
§ 9799.12; and where Appellant’s age and ability to
lead a law-abiding life over the past decade make
Appellant unlikely to engage in future predatory
sexually violent offenses[?]
Appellant’s brief at 8.
Our standard of review is well settled:
The determination of a defendant’s SVP
status may only be made following an
assessment by the [Sexual Offenders
Assessment Board (“SOAB”)] and
hearing before the trial court. 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 sexually violent predator.
As with any sufficiency of the evidence
claim, we view all the 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.
The standard of proof governing the determination of
SVP status, i.e., “clear and convincing evidence,”
has been described as an “intermediate” test, which
is more exacting than a preponderance of the
evidence test, but less exacting than proof beyond a
reasonable doubt.
....
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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 [in] issue.”
Commonwealth v. Morgan, 16 A.3d 1165, 1168 (Pa.Super. 2011), appeal
denied, 38 A.3d 824 (Pa. 2012), quoting Commonwealth v. Fuentes, 991
A.2d 935, 941-942 (Pa.Super. 2010) (en banc), appeal denied, 12 A.3d
370 (Pa. 2010) (citations omitted).
This Court has explained the SVP determination
process as follows:
After a person has been convicted of an
offense listed in [42 Pa.C.S.A.
§ 9799.14], the trial [court] then orders
an assessment to be done by the [SOAB]
to help determine if that person should
be classified as a[n SVP. An SVP] is
defined as a person who has been
convicted of a sexually violent offense
. . . and who [has] a mental abnormality
or personality disorder that makes the
person likely to engage in predatory
sexually violent offenses. In order to
show that the offender suffers from a
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. Moreover, there
must be a showing that the defendant’s
conduct was predatory ....
Furthermore, in reaching a
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determination, we must examine the
driving force behind the commission of
these acts, as well as looking at the
offender’s propensity to reoffend, an
opinion about which the
Commonwealth’s expert is required to
opine. However, the risk of re-offending
is but one factor to be considered when
making an assessment; it is not an
independent element.
Commonwealth v. Stephens, 74 A.3d 1034, 1038-
1039 (Pa.Super. 2013) (internal quotation marks,
ellipsis, and citations omitted).
When performing an SVP assessment, a mental
health professional must consider the following
15 factors: whether the instant offense involved
multiple victims; whether the defendant exceeded
the means necessary to achieve the offense; the
nature of the sexual contact with the victim(s); the
defendant’s relationship with the victim(s); the
victim(s)’ age(s); whether the instant offense
included a display of unusual cruelty by the
defendant during the commission of the offense; the
victim(s)’ mental capacity(ies); the defendant’s prior
criminal record; whether the defendant completed
any prior sentence(s); whether the defendant
participated in available programs for sexual
offenders; the defendant’s age; the defendant’s use
of illegal drugs; whether the defendant suffers from
a mental illness, mental disability, or mental
abnormality; behavioral characteristics that
contribute to the defendant’s conduct; and any other
factor reasonably related to the defendant’s risk of
reoffending. See 42 Pa.C.S.A. § 9799.24(b).
Commonwealth v. Hollingshead, 111 A.3d 186, 189-190 (Pa.Super.
2015), appeal denied, 125 A.3d 1199 (Pa. 2015) (parentheses in original).
The Commonwealth’s expert, Veronique N. Valliere, Psy.D., a member
of the SOAB, performed her assessment on December 8, 2015. In her
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report, Dr. Valliere concluded that appellant met the diagnostic criteria for
pedophilic disorder, which is considered a congenital or acquired condition.
(Commonwealth’s Exhibit C-1 at 5.)4 Pedophilic disorder is considered a
lifetime condition that can only be managed, not cured. (Id.) Dr. Valliere
opined that pedophilic disorder is related to a future likelihood of re-offense.
(Id.) In addition, Dr. Valliere found that appellant’s condition overrode his
emotional or volitional control: “In spite of knowing the potential
consequences to himself and/or the victim, [appellant] repeatedly engaged
in sexual behavior with a prepubescent child.” (Id.) Dr. Valliere noted that
appellant’s offenses occurred with two different victims, multiple times for
over a decade. (Id.) Appellant’s deviant conduct included fondling,
progressing to oral and anal sex.5 (Id. at 2.)
Regarding the statutory factors outlined above, Dr. Valliere found that
appellant’s offenses involved two victims, and while he did not abuse them
at the same time, his offenses were repeated and occurred over a period of
years. (Id. at 3.) The victims were prepubescent when the abuse began;
one victim was 7 and the other was 10 years old. (Id. at 4.) The first
victim, V.P., was appellant’s stepson; the second victim, D.S., was his
4
Neither the Commonwealth’s nor appellant’s expert testified at the SVP
hearing. The Commonwealth and the defense relied on the experts’ reports and
stipulated to their testimony. (Notes of testimony, 5/23/16 at 5-6.)
5
Appellant did not admit to anal sex as part of his guilty plea; however, it was
charged in the criminal complaint and information.
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biological son. (Id.) Appellant used his authority as a father figure to
ensure the victims’ compliance. (Id.) Appellant was 49 years old, indicating
that his personality and sexual arousal pattern were well established. (Id.)
Dr. Valliere found that his age was not protective regarding his risk of
recidivism. (Id.) Appellant had no prior criminal record, and there was no
evidence that drugs or alcohol played a role in appellant’s offense behavior.
(Id.)
Dr. Valliere concluded that appellant engaged in “predatory” behavior
as that term is defined in the statute, i.e., appellant had access to both
victims through a familial relationship and used that relationship to facilitate
their victimization. (Id. at 5-6.) In Dr. Valliere’s expert opinion, appellant
met the statutory criteria to be classified as an SVP. (Id. at 6.)
Appellant’s expert, Timothy P. Foley, Ph.D., agreed with Dr. Valliere
that appellant met the DSM-56 criteria for pedophilic disorder. (Defense
Exhibit D-1 at 4.) Dr. Foley also agreed that appellant’s offenses involved
two prepubescent children, aged approximately 7 to 13 years during the
commission of the offenses. (Id. at 5.) Dr. Foley acknowledged that
appellant promoted a parental relationship with the victims, satisfying the
6
Diagnostic and Statistical Manual of Mental Disorders, 5th Edition. “The DSM is
a categorical classification system that divides mental disorders into types
based on criteria sets with defining features. According to [both experts], the
DSM is an authoritative compilation of information about mental disorders and
represents the best consensus of the psychiatric profession on how to diagnose
mental disorders.” Hollingshead, 111 A.3d at 190 n.4 (citation omitted;
internal quotation marks omitted; brackets in original).
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predatory prong of the statute. (Id. at 7.) There were indications that
appellant promoted a relationship with the victims for the primary purpose of
sexual victimization. (Id. at 5.) However, Dr. Foley disagreed that
appellant suffers from a mental abnormality making him likely to perpetrate
sexually violent acts in the future or that appellant has current volitional
deficits compromising his ability to control his sexual behavior. (Id. at 6.)
In reaching his conclusions, Dr. Foley relied on the “Static-99R,” an
actuarially-derived prediction tool intended to measure long-term risk
potential for sexual offending. (Id. at 4.) According to Dr. Foley, the
Static-99R is based on a meta-analysis of the records of more than 25,000
convicted sex offenders released to the community. (Id.) Factors in
appellant’s favor vis-à-vis his risk of re-offense included that the victims
were not strangers or unrelated to appellant; there were no indications he
did more than what was necessary to commit the offenses; there were no
reports of gratuitous cruelty or violence; other than their ages, neither
victim suffered from a cognitive deficit that increased his vulnerability to
abuse; appellant’s age of 49 years and the likelihood that he will be confined
or supervised for many years; appellant’s lack of a prior criminal record; and
the fact that appellant had no documented victims for more than 10 years,
after he last abused the second victim in this case. (Id. at 5-6.) Dr. Foley
concluded that using the Static-99R risk assessment tool, appellant is
categorized with offenders who recidivate with low frequency. (Id. at 7.)
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Dr. Foley determined that appellant did not meet the statutory criteria for
categorization as an SVP. (Id.)
After considering both experts’ reports, as well as the arguments of
counsel and appellant’s own testimony, the trial court found clear and
convincing evidence that appellant satisfied the statutory criteria for SVP
status:
The Court considered the reports of both experts,
with all due respect to Dr. Foley, who did not have
the benefit of an interview.[7] The Court is
extremely concerned by several statements that
[appellant] made specifically when asked questions
about the sexual abuse of V.P. he stated he felt bad
and wanted to stop but he was unable to and it
continued. He had no regrets. The second comment
that the Court is extremely troubled by is the
comment in response to questioning, about the oral
sex that occurred was [appellant]’s statement it
wasn’t anything serious it was stupid.[8] With
respect to his responses to the Assistant District
Attorney’s questioning with respect to D.S. the Court
finds it troubling that this many years later
[appellant] continues to justify his horrific acts
towards D.S. by saying that D.S.’s mother indicated
7
Appellant declined to participate in the interview process; therefore, neither
expert interviewed appellant.
8
Q[.] Would I also be correct that your sexual abuse of
V.P. was escalating; in other words, in the
beginning of your sexual abuse of V.P. it started
with fondling of V.P. and eventually escalated at
least to what you admitted at the guilty plea to
you penetrating his mouth with your penis?
A[.] I suppose but that happened like once and it
wasn’t like anything serious. It was stupid.
Notes of testimony, 5/23/16 at 14.
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that D.S. wasn’t developing right and therefore that
was the reason for the sexual abuse.
Notes of testimony, 5/23/16 at 24.
Appellant does not dispute the diagnosis of pedophilic disorder, but
argues that the Commonwealth failed to prove it affects his emotional or
volitional capacity as required by 42 Pa.C.S.A. § 9799.12. (Appellant’s brief
at 19.) Appellant also argues that the trial court misconstrued his
testimony. (Id. at 20-21.) Appellant emphasizes that there were no further
reports of child sexual abuse after 2005, despite the fact that he was around
children during this time. (Id. at 21.)
In concluding that appellant’s mental abnormality, i.e., pedophilic
disorder, compromised his emotional and volitional control, Dr. Valliere
stated, “In spite of knowing the potential consequences to himself and/or
the victim, [appellant] repeatedly engaged in sexual behavior with a
prepubescent child. His deviant arousal pattern motivated his sexual offense
to a second victim for a period of offending that spanned over a decade.”
(Commonwealth’s Exhibit C-1 at 5.) The trial court, as fact-finder, was free
to accept Dr. Valliere’s opinion in this regard. In fact, the allegations were
that appellant did not stop molesting his first victim, V.P., until V.P.
threatened to stab him. (Id. at 2.) V.P. was approximately 13 years old at
that time. (Id.) Appellant then turned to his biological son, D.S., who was
10 years old. (Id.)
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At the SVP hearing, appellant denied that V.P. ever threatened to stab
him, but did admit having difficulties controlling his sexual urges:
Q[.] No, sir. Were there ever times during the
period of time when you sexually abused V.P.
that you felt bad about it and wanted to stop?
A[.] Oh, yes, yes, yeah. I can concretely answer
that question, yes, there was [sic].
Q[.] Despite occasions when you would feel bad
about it and wanted to stop were there
occasions where you would nevertheless
continue to sexually abuse V.P.?
A[.] Yeah. But it was one thing on my mind and
not any -- I wasn’t feeling any regret at the
moment. I was either usually under the
influence of marijuana or possibly alcohol or
both and kind of I don’t know kind of out of it
for that.
Q[.] Would it be fair to say that despite your best
intentions to not want to sexually abuse V.P.
you continued to abuse V.P.?
A[.] I guess the feeling of regret did pass away
after a period of time. I don’t know what
increment [sic] I was feeling at the time.
Notes of testimony, 5/23/16 at 13-14.
Therefore, the testimony supports the trial court’s finding that
appellant was unable to control his deviant sexual impulses. At least
sometimes, he knew what he was doing was wrong and wanted to stop, but
could not resist his pedophilic urges. Regarding appellant’s argument that
there were no reported incidents after 2005, appellant testified that he was
around other children over the last 10 years, including friends of D.S. and
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the 8- or 9-year-old son of one of his girlfriends. (Id. at 18-19.) However,
appellant testified that he was never alone with any of these other children.
(Id. at 18-20.) Therefore, he never would have had the opportunity to
abuse them.
Appellant also argues that the Commonwealth failed to prove he is
likely to commit future predatory sexually violent offenses. Appellant relies
on Dr. Foley’s report, including his use of the Static-99R assessment tool.
Appellant cites several factors related to the risk of re-offense, including his
age, the fact that he did not exceed the means necessary to commit the
offenses or display unusual cruelty during the crimes, and that commission
of the crimes did not involve alcohol or drug use.9 (Appellant’s brief at
28-29.) Appellant claims that the trial court took his statement that forcing
V.P. to perform oral sex “wasn’t like anything serious” out of context, and
that he fully appreciated the seriousness of the offenses. (Id. at 27.)
Appellant also argues that Dr. Valliere never explicitly stated that appellant
is likely to re-offend. (Id. at 25.)
Dr. Valliere considered the factors relied upon by appellant, including
his age, but concluded that, “His age is not protective regarding recidivism
risk.” (Commonwealth’s Exhibit C-1 at 4.) Dr. Valliere acknowledged that
“There is nothing in the offense information to indicate that the offender is
9
In fact, as stated above, appellant testified that he was frequently high or
drinking alcohol when he sexually abused V.P. (Notes of testimony, 5/23/16 at
13.)
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aroused to cruelty or the pain, humiliation, or terror of the victim.” (Id.)
Dr. Valliere found that appellant has a disorder, pedophilia, “related to a
future likelihood of re-offense.” (Id. at 5.) Dr. Valliere also noted that
pedophilic disorder cannot be cured and that “[appellant] always has the
potential to become sexually aroused to children.” (Id.) Furthermore, “the
risk of re-offending is but one factor to be considered when making an
assessment; it is not an independent element.” Stephens, 74 A.3d at 1039
(citation omitted). See also Morgan, 16 A.3d at 1171 (“Dr. Valliere was
not required to explicitly say that Appellant would reoffend in order to qualify
him as an SVP. His mental abnormality and the exhibited predatory
behavior predispose him to [the] future likelihood of victimization.” (quoting
with approval from the trial court opinion, 10/21/10 at 8-10)).
The trial court did not take appellant’s statements out of context, as
appellant suggests. To the contrary, when questioned on cross-examination
regarding forcing his penis into V.P.’s mouth, appellant responded, “I
suppose but that happened like once and it wasn’t like anything serious. It
was stupid.” (Notes of testimony, 5/23/16 at 14.) In addition, the
testimony does not reflect that appellant appreciated the seriousness of the
offenses and their impact on the victims. Appellant bemoaned the fact that
“I’ve lost everything, everything, everything, friends, family, money,
possessions.” (Id. at 11.) Appellant complained that an SVP designation
“would just complicate things immensely.” (Id.) Appellant testified that any
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feeling of regret “did pass away after a period of time.” (Id. at 14.)
Appellant also claimed that after he and V.P.’s mother broke up, V.P. came
to live with him willingly. (Id.) With respect to his abuse of D.S., appellant
seemed to blame D.S.’s mother. (Id. at 14-16.) So, the record does not
support appellant’s argument that he understood the serious nature of the
offenses and their devastating impact on the victims.
Appellant relies on Dr. Foley’s report and his use of the Static-99R
actuarial-assessment tool. However, as this court remarked in
Hollingshead, in which the defendant had also retained Dr. Foley as her
expert:
Appellant argues that Dr. Foley’s testimony proves
that she is not an SVP. We, as an appellate court,
are required to view the evidence in the light most
favorable to the Commonwealth when reviewing the
sufficiency of the evidence for an SVP determination.
The trial court made a credibility determination and
chose to believe Ms. Scheuneman over Dr. Foley.
We may not disturb that credibility determination.
Hollingshead, 111 A.3d at 194. See also Morgan, 16 A.3d at 1173 (“this
Court recently rejected this assertion that the likelihood to reoffend must be
based upon ‘any actuarial instrument to predict risk.’”), quoting Fuentes,
991 A.2d at 944.
The trial court carefully weighed all of the statutorily-mandated factors
and concluded that the evidence proved, by clear and convincing evidence,
that appellant is an SVP. We discern no error of law or abuse of discretion in
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this determination. Accordingly, we affirm the order of the trial court
classifying appellant an SVP.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2017
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