J. A21016/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :    IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                                            :
                                            :
                 v.                         :
                                            :
MAURICE HICKADAY,                           :
                                            :
                 Appellant                  :    No. 1726 EDA 2015

         Appeal from the Judgment of Sentence January 28, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0002566-2014

BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                        FILED NOVEMBER 18, 2016

     Appellant, Maurice Hickaday, appeals from the Judgment of Sentence

entered on January 28, 2015, in the Court of Common Pleas of Philadelphia

County following his no contest plea to Rape by Forcible Compulsion,

Indecent Assault by Forcible Compulsion, Carrying a Firearm without a

License, Possessing an Instrument of a Crime1 and his designation as a

Sexually Violent Predator (“SVP”) pursuant to 42 Pa.C.S. §§ 9799.10-

9799.41. After careful review, we affirm.

     The factual history is not in dispute.     On May 8, 2011, in the early

morning hours, Marian Shelton (“Victim”) was leaving the area near the

Sugarhouse Casino on Delaware Avenue in Philadelphia, Pennsylvania, when

1
  18 Pa.C.S. § 3121(a)(1); 18 Pa.C.S. § 3126(a)(2); 18 Pa.C.S. §
6106(a)(1); and 18 Pa.C.S. § 907(a), respectively.
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Appellant, along with two other males, offered Victim and Victim’s friend a

ride. After Victim’s friend got out of the car, Appellant pointed a firearm at

Victim, took her to a nearby location, brought her inside a structure, and

engaged in non-consensual sexual intercourse with Victim.          Victim sought

medical treatment, including a rape kit examination.       The sperm that was

recovered from the rape kit was placed in the DNA database, and in 2013

there was a “CODIS result which led to the [Appellant’s] arrest.” Trial Court

Opinion, dated 11/3/15, at 3.

      On July 22, 2014, Appellant appeared before the Honorable Timika

Lane and pled no contest to Rape by Forcible Compulsion and related

charges.   Judge Lane sentenced Appellant to a term of 7 ½ to 15 years’

incarceration followed by 5 years of probation for the Rape charge, 7 years

of probation for Carrying a Firearm without a License, and 3 years of

probation for Possessing an Instrument of Crime.           Judge Lane deferred

sentencing on the Indecent Assault charge.

      On January 23, 2015, Judge Lane held a SVP hearing.                     The

Commonwealth entered into evidence the Sexual Offender Assessment

Board Report by Dr. Barbara Ziv (“Report”) and Dr. Ziv’s curriculum vitae

without objection from Appellant. The parties stipulated that Dr. Ziv was an

expert in her field and if called to testify, she would testify to the contents of

the Report, which concluded that Appellant met the criteria set forth in the

law for classification as a SVP. The parties further stipulated that there were



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some errors in Dr. Ziv’s Report regarding Appellant’s criminal history, but

also stipulated that Dr. Ziv communicated to the Commonwealth that the

corrections “would not alter her analysis and determination” that Appellant

meets the criteria to be a SVP. N.T. SVP Hearing, 1/23/15, at 5. Without

objection from the Commonwealth, Appellant entered into evidence a copy

of the personality disorder chapter from the Diagnostic and Statistical

Manual 5th Edition (“DSM-V”) and an Inmate Cummulative Adjustment

Record document from the       Pennsylvania Department of Corrections.

Appellant did not present any witnesses.   After holding her decision under

advisement, on January 28, 2015, Judge Lane found by clear and convincing

evidence that Appellant met the criteria for a SVP.     Judge Lane sentenced

Appellant to “no further penalty” for the Indecent Assault charge and

ordered that Appellant was “subject to a lifetime registration with the

Pennsylvania State Police.” N.T. Sentencing, 1/28/15, at 3-4.

     On February 6, 2015, Appellant filed a timely Post-Sentence Motion,

which was denied on June 2, 2015.       Appellant timely appealed and both

parties complied with Pa.R.A.P. 1925.

     Appellant raises the following issues on appeal:

  1. Did not the Commonwealth fail to prove by clear and convincing
     evidence that [A]ppellant met the statutory definition of a
     “sexually violent predator” (SVP) where: a) the Commonwealth
     failed to prove by clear and convincing evidence that [A]ppellant
     suffered from Personality Disorder, NOS (not otherwise
     specified); b) the Commonwealth failed to prove by clear and
     convincing evidence that [A]ppellant was “likely” to engage in
     future predatory sexual violence; and c) the Commonwealth


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      failed to prove by clear and convincing evidence that [A]ppellant
      suffers from a lifelong condition?

   2. Did not the trial court abuse her discretion by giving too much
      weight to the Commonwealth expert’s report in finding that
      [A]ppellant met the statutory definition of SVP, and should not
      the Commonwealth expert’s opinion be given little weight due to
      the substantive inaccuracies and misrepresentations?


Appellant’s Brief at 4 (reordered for ease of disposition).

      Appellant first avers that there was not sufficient evidence to

determine that Appellant met the criteria to be classified as a SVP,

specifically that the Commonwealth failed to prove by clear and convincing

evidence that Appellant suffers from a lifelong personality disorder that

makes it likely that Appellant will engage in future predatory sexual violence.

Appellant’s Brief at 4.

      Appellant’s challenge to the sufficiency of the evidence to support the

trial court’s classification of Appellant as a SVP presents a question of law,

therefore our standard of review is de novo and our scope of review is

plenary. Commonwealth v. Meals, 912 A.2d 213, 218 (Pa. 2006). The

standard of proof governing the determination of SVP status is clear and

convincing evidence, which “requires evidence that is so clear, direct,

weighty, and convincing as to enable the trier of fact to come to a clear

conviction, without hestitency, of the truth of the precise facts in issue.” Id.

at 219 (quotation and citation omitted). When reviewing the sufficiency of




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evidence, we must consider the evidence in the light most favorable to the

Commonwealth, the prevailing party in the instant case. Id. at 218.

      The procedure for “determining SVP status is statutorily-mandated and

well-defined.”     Commonwealth v. Dixon, 907 A.2d 533, 535 (Pa. Super.

2006). Section 9799.24 mandates that a trial court order every individual

convicted of a sexually violent offense to be assessed by the Sexual Offender

Assessment Board (“SOAB”) prior to sentencing to determine whether that

individual qualifies as a SVP. 42 Pa.C.S. § 9799.24(a). A SVP is someone

who has been convicted of one of the statute’s enumerated offenses and

suffers from “a mental abnormality or personality disorder that makes the

individual likely to engage in predatory sexually violent offenses.”         42

Pa.C.S. § 9799.12; Dixon, supra at 537. The term “predatory” is further

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.”          42

Pa.C.S. § 9799.12.

      The statutorily-mandated assessment must include, but is not limited

to, an examination of the following to determine whether the individual

qualifies as a SVP:

      (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.


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            (ii)    The nature of the sexual contact with the victim.

            (iii)   Relationship of the individual to the victim.

            (iv)    Age of the victim.

            (v)     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. § 9799.24.




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      After a careful review, and viewing the evidence in the light most

favorable to the Commonwealth, we conclude the evidence was sufficient

to support the trial court’s classification of Appellant as a SVP.

      In the instant case, both parties stipulated to Dr. Ziv’s Report that

thoroughly addressed all of the statutorily mandated factors. In the Report,

Dr. Ziv concluded to a reasonable degree of professional certainty that

Appellant suffers from a lifelong mental abnormality or personality disorder

as defined in the statute, namely Unspecified Personality Disorder with

Antisocial Traits, that Appellant’s “behavior during the [i]nstant [o]ffense

does represent or correspond to the legal conception of ‘predatory,”’ and

that Appellant met the criteria set forth in the law for classification as a SVP.

SOAB Report, 9/17/14, at 9-10.

      Appellant argues that Dr. Ziv did not make a “competent diagnosis”

because she determined that Appellant was suffering from an Unspecified

Personality Disorder with Antisocial Features but used the DSM-V criteria for

Antisocial Personality Disorder to justify this diagnosis. Appellant’s Brief at

10, 20. Appellant specifically argues that Dr. Ziv made a diagnosis “without

evidence of a conduct disorder prior to age fifteen as required by the DSM-

V.” Appellant’s Brief at 20. This argument fails for several reasons.

      First, the SVP statute “does not require proof of a standard of

diagnosis that is commonly found and/or accepted in a mental health

diagnostic paradigm.”    Commonwealth v. Dengler, 890 A.2d 372, 383



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(Pa. 2005). Rather, what is required is an analysis of the statutory factors.

Id.   Here, as required, Dr. Ziv analyzed all of the statutorily-mandated

factors   to   determine    that    Appellant   “suffers     from   a   Mental

Abnormality/Personality Disorder as defined in the Act.”        SOAB Report,

9/17/14, at 10.   Appellant’s argument that Dr. Ziv did not use a specific

criteria “required by the DSM-V” is without merit.

      Second, Dr. Ziv’s expert opinion is itself evidence.    Meals, supra at

223–24. And, “[t]o the extent [Appellant] felt that the expert’s ‘diagnosis’

was not fully explained, did not square with accepted analyses of the

disorder, or was simply erroneous, he certainly was free to introduce

evidence to that effect and/or to argue to the factfinder that the

Commonwealth’s expert’s conclusions should be discounted or ignored. But

that argument would affect the weight, and not the sufficiency, of the

expert's evidence.” Id.

      In this case, Appellant failed to cross-examine Dr. Ziv or introduce any

contradictory evidence. The uncontroverted evidence presented to the trial

court was an expert opinion that Appellant met the criteria for SVP. As such,

the trial court had sufficient evidence to designate Appellant a SVP.     See

Meals, supra at 223-24 (citations and footnote omitted).

      Appellant next avers that the trial court abused its discretion by giving

too much weight to Dr. Ziv’s Report and that the Report should have been




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given little weight due to substantive inaccuracies and misrepresentations.

Appellant’s Brief at 4. We disagree.

     This Court’s standard of review of a weight of the evidence claim is for

an abuse of discretion. Commonwealth v. Ratushny, 17 A.3d 1269, 1272

(Pa. Super. 2011). Further, “it is not the function of the appellate court to

substitute its judgment based on a cold record for that of the trial court.

The weight to be accorded conflicting evidence is exclusively for the fact

finder, whose findings will not be disturbed on appeal if they are supported

by the record.” Id. (citation and quotation omitted).

     Here, the trial court opined:

     Defense counsel argues that Dr. Ziv’s report contained
     inaccuracies.     These errors were corrected during the SVP
     hearing and brought to the trial court's attention. Both counsels
     stipulated to the use of Dr. Ziv’s report. In addition, Dr. Ziv also
     indicated that the errors would not alter her analysis and
     determination that [Appellant] meets the criteria to be a SVP.
     Further, defense counsel argued that Dr. Ziv erred when she
     diagnosed [Appellant] with an Unspecified Personality Disorder,
     but used the criteria of Antisocial Personality Disorder from the
     DSM[-]V. The trial court finds Dr. Ziv’s professional analysis to
     be accurate and credible. Further, her report concludes that
     [Appellant] met the criteria for Unspecified Personality Disorder
     with antisocial traits, negating defense counsel's argument that
     Dr. Ziv erred when she used the Antisocial Personality Disorder
     criteria. [Appellant]’s deviant sexual interest and personality
     disorder places him with an increased recidivism risk.            In
     addition, a thorough review of the statutory factors supports the
     classification of [Appellant] as a SVP. Therefore, the trial court’s
     designation of [Appellant] as a SVP was not against the weight
     of evidence.




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Trial Court Opinion, filed 11/3/15, at 10-11 (footnote and internal citations

omitted).   As the record supports the trial court’s conclusions, we find no

abuse of discretion.

      Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/18/2016




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