Com. v. Fahnestock, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
RICHARD DAVID FAHNESTOCK
Appellant No. 1223 MDA 2020
Appeal from the Judgment of Sentence September 8, 2020
In the Court of Common Pleas of Dauphin County
Criminal Division at No: CP-22-CR-0000765-2018
BEFORE: LAZARUS, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED: August 10, 2021
Appellant, Richard David Fahnestock, appeals from the judgment of
sentence entered on September 8, 2020 in the Court of Common Pleas of
Dauphin County following entry of his guilty plea to, inter alia, one count of
rape, two counts of involuntary deviate sexual intercourse (“IDSI”), and one
count of corruption of minors.1 In addition to imposing a prison sentence of
eight to sixteen years in a state correctional institution for rape, the court
sentenced Appellant to state supervision for IDSI and corruption of minors,
running concurrently with his prison sentence. The court also determined
after a hearing that Appellant would be classified as a sexually violent predator
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1 18 Pa.C.S.A §§ 3121(C), 3123(A)(7), and 6301(A)(1)(ii), respectively.
Appellant’s guilty plea was also entered with respect to a charge of statutory
sexual assault. 18 Pa.C.S.A. §§3122.1(B).
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(“SVP”). In his sole issue on appeal, Appellant challenges the sentencing
court’s determination that Appellant met the criteria for an SVP. Following
review, we affirm.
As reflected in the trial court’s Rule 1925(a) opinion, the affidavit of
probable cause reflected that the Middletown Police were advised of a case of
sexual assault involving a minor child (“E.S.”). In a forensic interview of E.S.
and her younger sister K.S. conducted at a children’s resource center, K.S.
explained that she lived with E.S. as well as their mother, their brother, and
Appellant. K.S. said that when she shared a bedroom with E.S., she witnessed
Appellant and E.S. having sex with their clothing removed. E.S. stated that
she and Appellant had both vaginal and anal intercourse and that Appellant
instructed her to perform oral sex on him. She indicated that the sexual
encounters began when she was 12 and lasted until she was almost 14. Trial
Court Opinion, 11/17/20, at 1- 2 (citing Affidavit of Probable Cause, 1/12/18,
at 1).
On September 8, 2020, prior to sentencing, the trial court conducted a
hearing to determine whether Appellant should be classified as an SVP. At
the hearing, the Commonwealth presented testimony of Dr. Robert Stein, a
member affiliated since 1998 with the Sexual Offenders Assessment Board
(“SOAB”). Dr. Stein explained that he considered the factors set forth in the
statute, looking for “either a mental abnormality or personality disorder along
with predatory behavior.” Id. at 2 (citing N.T., SVP Hearing, at 7). Dr. Stein
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concluded that Appellant met the criteria for a DSM-V2 classification of “other
specified paraphilic disorder of nonconsent.” Id. at 3 (citing N.T., SVP
Hearing, at 12). The finding of a disorder, coupled with a finding of predatory
behavior, led to Dr. Stein’s conclusion that Appellant met the criteria for an
SVP. Id. at 2-3 (citing N.T., SVP Hearing, at 11, 12, 19).
Appellant’s counsel presented testimony of Dr. Christopher Lorah. Dr.
Lorah disagreed with Dr. Stein’s diagnosis and concluded Appellant did not
meet the SVP criteria. Dr. Lorah testified that Appellant likely met the criteria
for a different diagnosis, “borderline personality behavior,” but acknowledged
that Appellant engaged in predatory behavior. Id. at 2-3 (citing N.T., SVP
Hearing, 9/8/20).3
The trial court sentenced Appellant at the conclusion of the SVP hearing.
This timely appeal followed. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
As noted above, Appellant raises only one issue on appeal, framed as
follows:
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2 Diagnostic and Statistical Manual of Mental Disorders, Fifth Ed.
3 We note that the certified record on appeal includes the transcript from
Appellant’s Sentencing Hearing on September 8, 2020, but does not include a
transcript from the SVP hearing conducted the same day, prior to sentencing.
Therefore, we rely on the trial court’s summary of the testimony, supported
by references to the notes of testimony. In his brief, Appellant does not take
issue with the court’s summary of the testimony or references to the trial
transcript.
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Whether the Commonwealth met its burden to prove by clear and
convincing evidence that a person is a sexually violent predator
when most of the Megan’s Law statute’s criteria have not been
met and when the person is not a repeat sex offender?
Appellant’s Brief at 4.
When considering the sufficiency of evidence supporting a trial court's
SVP designation, our standard of review is as follows:
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
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),
appeal denied, 125 A.3d 1199 (Pa. 2015) (citation omitted). On appeal from
a trial court’s classification of an offender as an SVP, this Court is to review,
not reweigh and reassess, the evidence. Commonwealth v. Meals, 912 A.2d
213, 223 (Pa. 2006).
This court has outlined the process for determining SVP status, stating:
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 an SVP.[4] An SVP is defined as a person who has
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4 The SOAB evaluator conducts an assessment that includes, inter alia, the
nature of the contact with the victim; the relationship of the individual to the
victim; the age of the victim; the mental capacity of the victim; the individual’s
prior criminal record; the individual’s characteristics, including the individual’s
(Footnote Continued Next Page)
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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.
Commonwealth v. Stephens, 74 A.3d 1034, 1038–39 (Pa. Super. 2013)
(cleaned up).
As reflected in his question of statement presented, Appellant contends
the Commonwealth failed to satisfy most of the Section 9799.24(b) factors.
Appellant’s Brief at 4. Addressing that claim, the trial court noted that Dr.
Stein testified regarding the factors that are most relevant to this case,
including
[t]he nature of sexual contact with the victim which included
penetrative sexual acts including sexual intercourse and oral sex.
The age of the victim; the victim was only 12 years old when this
started. The criminal history that included at least four prior
sentencing dates. The history of violation of conditional release.
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age. 42 Pa.C.S.A. § 9799.24(b)(1)-(4). The factors are not to be weighed to
determine an SVP classification, but rather are to be used as an aid to
diagnose an individual and reach a determination regarding SVP status. Trial
Court Opinion, 11/17/20, at 6 (citing Meals, 912 A.2d at 222).
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The age of the individual; [Appellant] was not a teenager or a very
young adult, he was in his 40s when this started.[5] The length of
time that the acts occurred. The course of conduct being
consistent with sustained or paraphilic sexually deviant interest.
And as previously mentioned, a statistical risk factor having four
or more prior sentencing dates.
Id. at 7 (quoting N.T., SVP Hearing, at 8-9). Cognizant that the Section
9799.24(b) factors are not meant to be weighed, id. (citing Meals, 912 A.2d
at 922), the court concluded that the Commonwealth presented sufficient
evidence through Dr. Stein’s testimony to support a classification of SVP based
on the factors set forth in the statute. While Appellant complains that “most
of the . . . criteria have not been met,” Appellant’s Brief at 4, he does not
amplify this argument. Consequently, we conclude there is no basis for this
Court to disturb the trial court’s determination based on the Section
9799.24(b) factors.
Appellant also contends that the Commonwealth failed to prove he
suffers from a mental abnormality and argues that Dr. Stein incorrectly
diagnosed Appellant with “other specified paraphilic disorder of nonconsent.”
Appellant’s Brief at 7. As the trial court explained, Dr. Stein came to this
conclusion “because the minor victim, ES, stated that there was force and
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5 Although not mentioned by Dr. Stein or the trial court, both of whom were
able to observe Appellant’s physical characteristics, we note that the criminal
complaint filed in this case reflects that Appellant is 6’4” tall and weighs 270
pounds. Criminal Complaint, 2/8/18, at 1.
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because of her young age.” Trial Court Opinion, 11/17/20, at 3 (quoting N.T.,
SVP Hearing, at 12).
Addressing the diagnosis, the trial court explained:
[Dr.] Stein based his diagnosis upon the finding that the sexual
behavior was “nonconsent behaviorally as the victim reported
force and due to her age.” As stated above, the victim in this
case, ES, was twelve (12) years old at the time this began. Dr.
Stein testified that the relevant behavior lasted well over six
months. Dr. Stein also testified that Appellant is at risk for long-
term engagement in this behavior because his condition is not a
curable one. Dr. Stein testified, “It’s not a curable condition. It’s
a potentially manageable condition. And the SVP statute aids the
individual in managing the condition through the long-term
treatment and through community notification.” Due to the
incurable nature of this condition, Dr. Stein opines that the
Appellant is likely to engage in this type of behavior long-term.
Additionally, on cross examination, Dr. Stein testified that
Appellant’s condition overrode his individual emotional volitional
control by testifying, “I think generally speaking when you have a
pattern of behavior like this, the conclusion would be that it
overrides volitional control.”
Id. at 8 (quoting N.T., SVP Hearing, at 8, 12-14, 18, and 28).
Dr. Lorah disagreed with Dr. Stein’s diagnosis, contending instead that
Appellant demonstrated a “borderline personality disorder.” He suggested
that a paraphilic disorder nonconsent diagnosis “should be reserved for the
most violent rapists and those whose sexual behavior is contingent on raping
people.” Id. at 9 (quoting N.T., SVP Hearing, at 36). However, as the trial
court recognized, the Commonwealth presented testimony from Dr. Stein
“that the minor victim, ES, indicated that force was present.” Id. (quoting
N.T., SVP Hearing, at 12). Although it is his opinion that the element of force
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does not need to be present when the victim is 12 years old and unable to
consent, Dr. Stein noted E.S.’s statement that “Appellant sometimes forced
sexual intercourse and ‘he would hold her down by her arms and pull her pants
off.’” Id. (quoting N.T., SVP Hearing, at 11).
According to the trial court, based on Dr. Stein’s testimony,
Dr. Lorah rests his disagreement of Dr. Stein’s diagnosis on the
belief that the minor victim, ES did not say the word no. “I do
understand there are some incidents where she said that he
pinned her down and that he forced it quote/unquote. But there’s
no indication that she ever said no.”
Id. (quoting N.T., SVP Hearing, at 36).
The trial court observed that while Dr. Lorah disagreed with Dr. Stein’s
diagnosis, he did acknowledge that the statute does not require a DSM-V
diagnosis for an SVP determination, but rather requires a finding of a mental
abnormality or personality disorder. In his report, Dr. Lorah indicated
Appellant had borderline personality disorder. While he tried “to clarify his
report by stating that his diagnosis of borderline personality disorder is
‘provisional as opposed to likely[,]’” Dr. Lorah did concede on cross-
examination that borderline personality disorder “is the best diagnosis.” Id.
at 10 (quoting N.T., SVP Hearing, at 54-55, 62). The trial court thus concluded
that there was sufficient evidence to support the conclusion that Appellant
suffered from a mental abnormality or personality disorder and that he is
properly classified as an SVP. Id. at 10.
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Viewing the evidence in the light most favorable to the Commonwealth
as verdict winner, we are able to conclude that the trial court found clear and
convincing evidence that Appellant is an SVP. See Hollingshead, 111 A.3d
at 189. Therefore, we shall not disturb the trial court’s determination of
Appellant’s SVP status.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/10/2021
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