Com. v. Pagan, C.

J-S44001-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARLOS MANUEL PAGAN :
:
Appellant : No. 781 MDA 2020
Appeal from the Judgment of Sentence Entered August 29, 2019
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0001226-2019
BEFORE: BENDER, P.J.E., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 10, 2020
Appellant, Carlos Manuel Pagan, appeals from the August 29, 2019
judgment of sentence of 221 days’ to 23 months’ imprisonment, followed by
3 years’ probation, imposed after he pled guilty to one count of indecent
assault of a victim less than 13 years of age, 18 Pa.C.S. § 3126(a)(1)(ii).
Herein, Appellant challenges his designation as a Sexually Violent Predator
(SVP) under Subchapter H of the Sexual Offender Registration and Notification
Act (“SORNA II”), 42 Pa.C.S. §§ 9799.10-9799.42.1 After careful review, we
affirm.
____________________________________________
1 Following Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), and
Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017) (“Butler I”), rev’d,
226 A.3d 972 (Pa. 2020) (“Butler II”), the Pennsylvania General Assembly
amended the prior version of SORNA (“SORNA I”) by enacting Act 10 on
February 21, 2018, and Act 29 on June 12, 2018, which are collectively known
as “SORNA II.” See Act of Feb. 21, 2018, P.L. 27, No. 10 (“Act 10”); Act of
J-S44001-20
On August 29, 2019, Appellant pled guilty to the above-stated offense.
He waived his right to a pre-sentence SVP determination and was sentenced
that same day to the aggregate term set forth supra. On April 30, 2020, the
court held a hearing to determine if Appellant should be deemed an SVP.
Based upon the testimony of Veronique N. Valliere, Psy.D. (“Dr. Valliere”), a
member of the Pennsylvania Sexual Offenders Assessment Board (“SOAB”),
the court entered an order finding that Appellant met the statutory criteria for
designation as an SVP under Subchapter H of SORNA II.
On May 26, 2020, Appellant filed a timely notice of appeal. See
Commonwealth v. Schrader, 141 A.3d 558, 561 (Pa. Super. 2016)
(concluding “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”). Additionally, Appellant attached to his notice of
appeal a Pa.R.A.P. 1925(b) concise statement of errors complained of on
____________________________________________
June 12, 2018, P.L. 140, No. 29 (“Act 29”). SORNA II now divides sex
offenders into two subchapters: (1) Subchapter H, which applies to an
offender who committed a sexually violent offense on or after December 20,
2012 (the date SORNA I became effective); and (2) Subchapter I, which
applies to an individual who committed a sexually violent offense on or after
April 22, 1996, but before December 20, 2012, whose period of registration
has not expired, or whose registration requirements under a former sexual
offender registration law have not expired.
-2-
J-S44001-20
appeal.2 The trial court filed a Rule 1925(a) opinion on June 16, 2020. Herein,
Appellant states four issues for our review:
[I.] Whether the [trial] court erred in designating Appellant as a[n
SVP] where the Commonwealth adduced legally insufficient
(unclear and unconvincing) evidence to support a finding that
Appellant’s mental disorder served as the impetus for his sexual
offense, or that he had a high likelihood of sexual recidivism[?]
[II.] Whether the lifetime[]registration requirements of
Subchapter H of [SORNA II] constitute an illegal sentence that
violates the due process clause of the [United States] and
[Pennsylvania] Constitutions because they are impermissibly
punitive, based on an irrebuttable false presumption, and do not
require a finding of guilt beyond a reasonable doubt[?]
[III.] Whether Subchapter H’s provisions[,] regarding automatic
lifetime[]registration requirements, demonstrated earlier in
Appellant’s brief to be unconstitutionally punitive, are not
severable from its provisions regarding requirements for SVPs:
wherefore the latter must be stricken down with the former, along
with the entirety of Subchapter H?
[IV.] Whether the lifetime-registration requirements of
Subchapter H of SORNA [II] involve unconstitutionally cruel and
unusual punishment[?]
Appellant’s Brief at 7-8 (footnote, quotation marks, and emphasis omitted).
Appellant first challenges the sufficiency of the evidence to sustain his
designation as an SVP.
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 sufficiency of the evidence claim, we view all evidence and
reasonable inferences therefrom in the light most favorable to the
____________________________________________
2 The trial court thereafter filed an order directing Appellant to file a Rule
1925(b) statement. Appellant did not file any amended/supplemental
statement in response. We view his premature Rule 1925(b) statement as
satisfying the court’s order.
-3-
J-S44001-20
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)
(citation omitted).
This Court has explained the SVP designation process, as follows:
After a person has been convicted of an offense listed in 42
Pa.C.S. § 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 an 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 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.
Hollingshead, 111 A.3d at 189-90 (citation and brackets omitted).
In this case, Appellant argues that the Commonwealth failed to prove
that the impetus behind his offense was a mental abnormality or personality
disorder. See Appellant’s Brief at 17 (citing Commonwealth v. Bey, 841
A.2 562, 566 (Pa. Super. 2004) (“The salient inquiry, mandated by the
-4-
J-S44001-20
statute, … in determining SVP status is identification of the impetus behind
commission of the offense, that is, whether it proceeds from a mental
defect/personality disorder or another motivating factor.”)). He further insists
that the Commonwealth did not establish that his “disorder[,] in particular[,]
makes it likely that he will commit further sexually violent offenses.” Id. at
18 (emphasis in original). According to Appellant, the Commonwealth’s sole
witness, Dr. Valliere, admitted that Appellant’s “mental disorder was not the
cause of, or any kind of ‘impetus for,’ his underlying sexual offense[,]” which
was Appellant’s “first and only” such crime. Id. at 18-19 (emphasis in
original). Appellant also insists that Dr. Valliere did not testify that his
“disorder render[s] him highly likely to commit another sexual offense[,]” but,
instead, she merely opined that his disorder “facilitates re[-]offense.” Id. at
19, 20 (emphasis added). For these reasons, Appellant concludes that Dr.
Valliere’s testimony was insufficient to constitute clear and convincing
evidence that he is an SVP.
After carefully reviewing the record, we disagree. At the SVP hearing,
Dr. Valliere testified as an expert in the field of sexual offender assessment.
N.T. Hearing, 4/30/20, at 4-5. While Appellant did not participate in an
interview with Dr. Valliere, she considered numerous documents from this
case, as well as Appellant’s other criminal actions, including the affidavits of
probable cause, investigation reports from the SOAB, a pre-sentence
investigation report, police reports, Appellant’s records from the Pennsylvania
Department of Probation and Parole, and information provided by the victim
-5-
J-S44001-20
in this case. Id. at 6. Based on her analysis, Dr. Valliere opined that Appellant
meets the statutory definition of an SVP. Id. at 8. More specifically, she
concluded that Appellant suffers from antisocial personality disorder. Id. at
8-9. In support of this conclusion, she noted that Appellant has committed
various offenses, demonstrating his “ability to be criminal in a variety of
areas[,] which is one of the hallmarks of antisocial” personality disorder. Id.
at 9.
Dr. Valliere recognized that “antisocial personality disorder[,] in and of
itself[,] does not make one sexually violent….” Id. However, she explained
that, “once sexual violence is added to the criminal repertoire, then antisocial
personality disorder facilitates re-offense because the individual lacks the
internal barriers to reoffending. So once somebody with antisocial personality
disorder starts sexually assaulting other people, then it’s related to risk of
recidivism.” Id. Pertaining specifically to Appellant, the doctor further
explained:
[Dr. Valliere:] In [Appellant’s] case, his sexual crime of repeatedly
sexually abusing an 8-year-old child for what is an unspecified
time period[,] but it looks like months[,] suggested he may have
sexual arousal to children;[3] but in any event, the child’s age was
____________________________________________
3 The facts considered by Dr. Valliere (to which Appellant does not object)
included statements by the victim’s mother that she entered “her daughter’s
bedroom” on the night of her 8th birthday and found Appellant “kneeling by
the bed” and “whispering to the victim.” Sexually Violent Predator
Assessment, 11/20/19, at 2. “When [Appellant] saw [the] mother standing
there, he ‘jumped to his feet,’ acting very nervous.” Id. The victim’s mother
took her into another room, at which point the victim said that Appellant “was
-6-
J-S44001-20
no barrier to his sex[ual] offending. So[,] he’s capable of
sexualizing and sexually assaulting a child even if he doesn’t
choose the victim because they [are] a child[,] like someone who’s
sexually aroused [by] children. So[,] that’s his diagnosis.
***
[The Commonwealth:] [Appellant] has no prior criminal history of
sexual offending; however, notwithstanding that, you believe that
he is likely to reoffend or possibly reoffend based on his antisocial
personality disorder?
[Dr. Valliere:] Yes. He does have a significant prior history of
violence against females, and his sexual assault of an available
child may be an indication that clearly he does not regard the
rights of others very readily[,] and has violated Protection From
Abuse Orders. So, like I said, he may not have targeted a child
in particular, but he is willing to violate other people violently and
for his own gratification. Now it has extended into the sexual
realm[,] which makes his behavior more likely to occur than
someone who did not have antisocial personality disorder.
Id. at 10.
Contrary to Appellant’s argument on appeal, Dr. Valliere’s testimony
was sufficient to constitute clear and convincing evidence that he suffers from
antisocial personality disorder and is likely to reoffend. She explained that his
disorder was the impetus for his committing the offense in this case, as well
as his past criminal activity. Dr. Valliere also opined that once an individual
with antisocial personality disorder commits an act of sexual violence, it
____________________________________________
touching her genitals and it was not the first time.” Id. During a subsequent
forensic interview, the victim “disclosed that [Appellant] had assaulted her by
touching her genitals over her clothing on the night he was arrested. … She
also stated that [Appellant] had touched her ‘lots of times’ during the ‘same
time.’ She said, ‘He keeps doing this to me, the same thing each time.’” Id.
Additionally, the victim’s father told police that they saw Appellant “every now
and then,” with the last visit being about three months before the assault in
this case. Id.
-7-
J-S44001-20
heightens their risk of recommitting sexual offenses. When asked if Appellant
was likely to reoffend based on his antisocial personality disorder, the doctor
answered in the affirmative. Therefore, Appellant’s challenge to the
sufficiency of the evidence to support his SVP designation is meritless.4
Appellant’s next three issues all attack the validity of the lifetime
registration requirements set forth in SORNA II’s Subchapter H and, thus, we
will address these issues together. At the outset, we observe that Appellant
does not directly challenge the validity of the SVP registration requirements
of Subchapter H, which apply to him. Instead, he attacks the constitutionality
____________________________________________
4 We note that Appellant’s comparison of his case to Commonwealth v.
Plucinski, 868 A.2d 20 (Pa. Super. 2005), is misplaced. There, we vacated
Plucinski’s SVP designation because his “offenses did not involve multiple
victims, unnecessary means, threats, or unusual cruelty[,]” it was Plucinski’s
first sexual offense, he had no history of failed treatment, and his age
suggested a decreased likelihood of reoffending. Id. at 25. We concluded
that these factors “did not clearly and convincingly show the existence of a
mental abnormality or personality disorder that makes [Plucinski] likely to
engage in future predatory sexual behavior.” Id. (citation and internal
quotation marks omitted). However, our Supreme Court has effectively
overruled Plucinski by expressly disapproving of the comparative weighing
of the assessment factors set forth in 42 Pa.C.S. § 9795.4(b) in reviewing a
sufficiency challenge to an SVP determination. See Commonwealth v.
Meals, 912 A.2d 213, 220 (Pa. 2006) (“To the extent the Superior Court panel
majority approached its task by comparing and ‘weighing’ Section 9795.4
factors not present here … against those circumstances whose presence the
trial court cited as supporting its SVP finding, the panel majority plainly erred.
The error in the … ‘comparative’ approach is not merely a function of the
limitation inherent in appellate sufficiency review, which should have confined
the court to an assessment of those factors which supported the SVP finding,
but also a function of the panel’s failure to appreciate the testimony below and
the practical operation of the statute, as revealed by that testimony.”); see
also Commonwealth v. Morgan, 16 A.3d 1165, 1173 (Pa. Super. 2011)
(recognizing that Meals effectively overruled Plucinski). Thus, Plucinski
does not control.
-8-
J-S44001-20
of the non-SVP, lifetime registration provisions of Subchapter H. Specifically,
he claims that those registration requirements are unconstitutional because
“they are impermissibly punitive, based on an irrebuttable false presumption,
… do not require a finding of guilt beyond a reasonable doubt[,]” and
constitute cruel and unusual punishment. Appellant’s Brief at 14, 15.
Appellant then insists that the non-SVP provisions of Subchapter H cannot be
severed from the remainder of the statute, thus rendering Subchapter H
unconstitutional in its entirety. In this roundabout way, Appellant concludes
that his registration requirements under the SVP provisions of Subchapter H
are invalid.
Appellant’s argument fails for several reasons. First, because Appellant
does not claim that he is subject to any of Subchapter H’s non-SVP registration
requirements, he lacks standing to challenge the constitutionality of those
provisions. See Commonwealth v. McCoy, 895 A.2d 18, 31 n.8 (Pa. Super.
2006) (“An individual launching a constitutional challenge to a statute must
be injured by it.”); Commonwealth v. Dodge, 429 A.2d 1143, 1146 (Pa.
Super. 1981) (providing that a defendant “does not have standing to object
to the constitutionality of a statute unless he is affected by the particular
feature alleged to be in conflict with the constitution”).
Second, even if Appellant did have standing to attack the non-SVP
provisions of Subchapter H, he has waived those claims for our review. In
Appellant’s Rule 1925(b) statement, he set forth one issue pertaining to his
registration requirements: “The lifetime sex offender registration is
-9-
J-S44001-20
unconstitutional under the Eighth Amendment of the United States
Constitution and Article I § 13 of the Pennsylvania Constitution. The lifetime
registration requirement is also illegal, as it is punitive and/or exceeds the
statutory maximum sentence for the offenses [for which Appellant] was
convicted.” Pa.R.A.P. 1925(b), 5/26/20, at 1 (single page). Given that
Appellant is subject to an SVP lifetime registration requirement under
Subchapter H, his failure to specify in his Rule 1925(b) statement that he is
attacking the constitutionality of the non-SVP lifetime registration
requirement of the statute waives that claim for our review. See Pa.R.A.P.
1925(b)(4)(vii).5 Appellant also did not specifically state, in his Rule 1925(b)
statement, his present argument that the ostensibly unconstitutional, non-
SVP registration requirements are not severable from the SVP provisions of
Subchapter H, thereby rendering the statute unconstitutional in its entirety.
As such, that claim is also waived.6
____________________________________________
5 We note that the trial court’s order informed Appellant that any issue not
included in his concise statement would be deemed waived. See Order,
6/1/20, at 1 (single page); Greater Erie Indus. Development Corp. v.
Presque Isle Downs, Inc., 88 A.3d 222, 225 (Pa. Super. 2014) (en banc)
(“[I]n determining whether an appellant has waived his issues on appeal
based on non-compliance with Pa.R.A.P. 1925, it is the trial court’s order that
triggers an appellant’s obligation[.] ... [T]herefore, we look first to the
language of that order.”) (citations omitted).
6 We recognize that an appellant cannot waive a challenge to the legality of
his sentence. See Commonwealth v. Dickson, 918 A.2d 95, 99 (Pa. 2007).
However, Subchapter H’s non-SVP registration requirements have not been
imposed upon Appellant. As such, his challenge to the constitutionality of
those provisions does not implicate the legality of his sentence.
- 10 -
J-S44001-20
Third, to the extent Appellant’s constitutional attacks on Subchapter H
could be viewed as implicating his SVP registration requirements, we are
bound by Butler II to conclude that those provisions are constitutional.
There, our Supreme Court held that the registration, notification, and
counseling requirements imposed by SORNA I on SVP offenders “do not
constitute criminal punishment.” Butler II, 226 A.3d at 992. Consequently,
the Butler II Court concluded that “the procedure for designating individuals
as SVPs under Section 9799.24(e)(3) is not subject to the requirements of
Apprendi [v. New Jersey, 530 U.S. 466 (2000),7] and Alleyne [v. U.S.,
570 U.S. 99 (2013),8] and remains constitutionally permissible.” Id. at 976.
Following Butler II, this Court has held that the SVP registration
requirements set forth in the revised Subchapter H of SORNA II are also not
punitive and may be constitutionally applied. See Commonwealth v.
Manzano, 237 A.3d 1175, 1179 (Pa. Super. 2020) (“[I]n light of the Supreme
Court’s decision in Butler II, we conclude that because SVP adjudication is
not criminal punishment, the trial court did not err in designating [Manzano]
a[n] SVP under SORNA II.”) (citing Commonwealth v. Groner, 233 A.3d
807, 809 (Pa. Super. 2020) (“In light of our Supreme Court’s decision in
____________________________________________
7 Apprendi held that, “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at
490.
8Alleyne holds that “facts that increase mandatory minimum sentences must
be submitted to the jury” and found beyond a reasonable doubt. Id. at 106.
- 11 -
J-S44001-20
Butler II, we conclude SORNA II’s [registration, notification, and counseling]
requirements for SVPs—essentially unchanged from those in SORNA [I]—are
likewise non-punitive, such that its procedural framework for designating SVPs
by clear and convincing evidence does not run afoul of Apprendi or
Alleyne.”)).
Following Butler II and Manzano, it is clear that Appellant’s SVP
registration requirements under Subchapter H of SORNA II are valid. To the
extent he attempts to attack Subchapter H’s non-SVP registration provisions,
he lacks standing to do so, and/or has waived those specific claims for our
review.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/10/2020
- 12 -
J-S44001-20
- 13 -