J-S19026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

DAVID GLENN WILLIAMS

                            Appellant                   No. 2338 EDA 2014


             Appeal from the Judgment of Sentence June 30, 2014
                in the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0002487-2013


BEFORE: STABILE, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                               FILED APRIL 21, 2015

        David Glenn Williams (“Appellant”) appeals from the judgment of

sentence entered in the Monroe County Court of Common Pleas following his

guilty plea conviction for child pornography.1 We affirm.

        In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case.       See Trial Court Opinion, dated

October 14, 2014 (“Trial Court Opinion”), pp. 1-4. Therefore, we have no

reason to restate them.

        Appellant raises the following issues for our review:

        I.    WHETHER SUFFICIENT EVIDENCE WAS PRESENTED TO
              SUPPORT [SEXUALLY VIOLENT PREDATOR (“SVP”)]
              CLASSIFICATION OF APPELLANT WHERE APPELLANT HAD
              A HISTORY OF VIEWING CHILD PORNOGRAPHY, HAD ONE
____________________________________________


1
    18 Pa.C.S. § 6312(d).
J-S19026-15


              PRIOR CONVICTION FOR STATUTORY SEXUAL ASSAULT
              AND NO HISTORY OF FAILED TREATMENT?

      II.     WHETHER THE COURT ERRED AND ABUSED ITS
              DISCRETION IN CLASSIFYING APPELLANT AS AN SVP
              WHERE IT DID NOT INDICATE ITS REASONS, WHERE
              THERE WAS A LACK OF EVIDENCE IN SUPPORT OF THE
              STATUTORY FACTORS?

Appellant’s Brief, p. 5.

      Our     review    of   Appellant’s   SVP   status   implicates   the   following

principles:

      The determination of a defendant’s SVP status may only be
      made following an assessment by the Board 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
      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. Fuentes, 991 A.2d 935, 941-42 (Pa.Super.2010).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Jonathan

Mark, we conclude Appellant’s issues merit no relief. The trial court opinion

comprehensively        discusses   and     properly   disposes   of    the   questions

presented.     (See Trial Court Opinion, pp. 4-8) (finding Commonwealth

proved Appellant was an SVP with clear and convincing evidence, including

the uncontradicted assessment of the Sexual Offenders Assessment Board’s


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J-S19026-15



counselor and evaluator, which considered all relevant factors listed in 42

Pa.C.S. § 9799.24, including Appellant’s personal and criminal history and

diagnosis of other specified paraphilic disorder, in determining Appellant’s

SVP status). Accordingly, we affirm on the basis of the trial court’s opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/21/2015




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             COURT OF COMMON PLEAS OF MONROE COUNTY
                   FORTY-THIRD JUDICIAL DISTRICT
                 COMMONWEAL TH OF PENNSYLVANIA


 COMMONWEAL TH OF PENNSYLVANIA
                                                      NO. 2487 CR 2013

             v.
                                                      APPEAL DOCKET NO.
 DAVID GLENN WILLIAMS,                                2338 EDA 2014

             Defendant


                  OPINION PURSUANT TO Pa.R.A.P. 1925(a)

       Following the denial of his post-sentence motion for reconsideration of sentence,

Defendant David Glenn Williams ("Defendant") filed an appeal from the judgment of

sentence entered on June 30, 2014. After the appeal was filed, we directed Defendant

to file a statement of errors complained of on appeal pursuant. to Pa.RAP. 1925(b).

Defendant complied. We now file this opinion in accordance with Pa.RAP. 1925(a).

      The Affidavit of Probable Cause, the Pre-Sentence Investigation report ("PSI")

which was not corrected by Defendant, and our remarks at Defendant's sentencing

hearing provide a full recitation of the relevant factual and procedural history. In

summary:

      On April 5, 2011,    Defendant's co-worker, Darren Higdon Sr., went to the

Lehighton Pennsylvania State Police Barracks to speak with Trooper Patrick Finn

regarding child pornography supplied by Defendant to Higdon's son, and his son's

friend. Higdon gave Trooper Finn a thumb.drive containing child pornographic images

and videos which Defendant had given to Higdon's son when Defendant loaned his

computer to Higdon. Trooper Finn interviewed Defendant regarding the thumb drive.

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Defendant admitted to downloading the videos of child pornography depicting 12 to 14

year-old females, confessed that he was attracted to and aroused by young females,

and stated that he masturbated to the videos. A computer analysis of the thumb drive

revealed six video files containing child pornography along with one deleted file of child

pornography.

       On June 1, 2011, Defendant was arrested and charged in a separate matter with

sexually assaulting a 14 year-old girl. On March 6, 2012, he pied guilty to Statutory

Sexual Assault,   a felony of the second degree. He was sentenced by this Court to 22
months to 1 O years in a State Correctional Institution. On June 10, 2013, Defendant was.

denied parole by the Board of Probation and Parole for failing to complete required Sex

Offenders Treatment.

       On August 1, 2013, Defendant was charged in this case with six counts of Sexual

Abuse of Children for possession of the child pornography. On January 7, 2014, he pied

guilty to Sexual Abuse of Children, a felony of the third degree. As part of the plea, the

Commonwealth agreed to dismiss the remaining charges.

      After accepting the plea, we entered an order directing that our Probation

Department prepare a PSI report and that the Sexual Offenders Assessment Board

(SOAB) conduct a Sexually Violent Predator (SVP) assessment and file a report

containing its conclusions. In addition, a sentencing hearing was scheduled.

       Prior to sentencing, SOAB issued a report identifying Defendant as an SVP.

Accordingly, we ordered that an SVP hearing be held immediately prior to the

sentencing hearing.




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           On June 30, 2014, the SVP hearing was convened as scheduled. During the

 SVP hearing, the Commonwealth presented the SOAB report together with the

 testimony of Paula Brust, MA, LPG, NCC, the evaluator who had authored the report.

 (N.T., 6/30/14 at 4-18; SOAB Report). Based on her evaluation of all available

 information, including Defendant's admission to viewing child pornography for decades,

the fact that he is aroused by young girls, his prior criminal history including his

conviction for Statutory Sexual Assault on a young girl, and his refusal to complete

sexual offender · treatment, Ms. Brust diagnosed Defendant as having a mental

abnormality or personality disorder, namely, Other Specified Paraphilic Disorder. (Id. at

9-13; SOAB Report at 7). Further, Ms. Brust found that Defendant exhibited predatory

behavior by, among other things, his inability to control self-defeating behaviors, the

escalation over time of his paraphilic behavior that has manifested itself in his searching

for, viewing, saving, and masturbating to child pornography for at least 20 years and

culminated with his preying upon a young girl for months and then sexual assaulting

her. (Id. at 9-13; SOAB report at 8-9). Based on these findings, Ms. Brust concluded

that Defendant met the criterion to be classified as an SVP. (Id. at 9-13; SOAB Report).

Defendant did not present testimony or evidence to contradict Ms. Brust's findings. (Id.

at 20).

          After considering the evidence presented during the hearing, including the SOAB

report, we found that the Commonwealth had proven by clear and convincing evidence

that Defendant was an SVP. We found Ms. Brust to be credible, concluded that she

properly considered statutory SVP factors, and determined that her diagnoses and

conclusions were supported by both the facts and the law. (N.T., 6/30/2014, at 25-32).


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                     After the SVP hearing concluded, the sentencing hearing was convened. At the

              conclusion of the hearing, we sentenced Defendant to incarceration of not less than 12

              months nor more than 24 months. In addition, we classified Defendant as an SVP and

              directed that he comply with the provisions of Megan's Law, 42 Pa. C.S.A. Section

              9799.10 et. seq. (Id. at 25-29; Order entered June 30, 2014).

                     Subsequently, Defendant filed a post-sentence motion asserting that we erred in

              classifying him as an SVP. We denied Defendant's motion, and this appeal followed.

                     Reduced to basics, Defendant's two assignments of error contend that we erred

             and abused our discretion by accepting the findings of SOAB and Ms. Brust and

             classifying him as an SVP. This contention is based on Defendant's assertion that

             SOAB "erroneously determined the Defendant to be a Sexually Violent Predator based

             solely on his own admissions to viewing child pornography for a period of thirty years,

             and engaging one time in a sexual relationshlp with a fourteen year old girl."

             (Defendant's Rule 1925{b) Statement, 111). Defendant's assignments of error are

             meritless.

                    Our Superior Court recently articulated the standard and scope of review to be

             applied in a challenge to an SVP determination:

                                  A challenge to a determination of SVP status requires us to
                                  view the evidence:
                                         [l]n the light most favorable to the
                                         Commonwealth. The reviewing court may not
                                         weigh the evidence or substitute its judgment
                                         for that of the trial court. 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 [at] issue.
·----·-   ·-------·---···-·-----·~-~-----~---

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                           Commonwealth v.            Plucinski, 868 A.2d 20, 25
                           (Pa.Super.2005) (internal citations and quotation marks
                           omitted). The scope of review is plenary. Commonwealth v.
                           Brooks, 7 A.3d 852 (Pa.Super.2010), appeal denied, 610 Pa.
                           614, 21 A.3d 1189 (2011). "[A]n expert's opinion, which is .
                           rendered to a reasonable degree of professional certainty, is
                           Itself evidence." Commonwealth v. Fuentes, 991 A.2d 935,
                          944 (Pa.Super.2010) (en bane), appeal denied, 608 Pa. 645,
                           12 A.3d 370 (2010) (emphasis in original).
                                  A challenge to the sufficiency of the evidence to
                          support an SVP designation requires the reviewing court to
                          accept the undiminished record of the case in the light most
                          favorable to the Commonwealth. Commonwealth v. Meals,
                          590 Pa. 110, 119, 912 A.2d 213, 218 (2006). The reviewing
                          court must examine all of the Commonwealth's evidence
                          without consideration of its admissibility. Commonwealth v.
                          Baker, 24 A.3d 1006, 1035 (Pa.Super.2011). A successful
                         sufficiency challenge can lead to an outright grant of relief
                         such as a reversal of the SVP designation, whereas a
                         challenge to the admissibility of the expert's opinion and
                         testimony is an evidentiary question which, if successful, can
                         lead to a new SVP hearing. Commonwealth v. Sanford, 580
                         Pa. 604, 608-09, 863 A.2d 428, 431 (2004) (distinguishing
                         concepts of sufficiency of evidence versus admissibility of
                         evidence, but refusing to render any opinion on whether SVP
                        expert's "reliance on the affidavit of probable cause and the
                        charging documents somehow rendered her testimony
                         inadmissible as this issue is not before this court").
                                 As a general rule, [the] standard of review of a
                                 trial court's evidentiary ruling . . . is limited to
                                 determining whether the trial court abused its
                                 discretion. An abuse of· discretion may not be
                                 found merely because an appellate court might
                                 have reached a different conclusion, but
                                 requires         a     result    of         manifest
                                 unreasonableness, or partiality, prejudice, bias,
                                 or ill-will, or such lack of support so as to be
                                 clearly erroneous.
                        Commonwealth v. Dengler, 586 Pa. 54, 65, 890 A.2d 372,
                        379 (2005) (internal citations and quotation marks omitted).
                        Our task in either scenario is one of review, not one of
                        reweighing or assessing the evidence in the first instance.
                        Meals, supra at 127, 912 A.2d at 223.

···--····
            Commonwealth v. Prendes, 97 A.3d 337, 355-56 (Pa. Super. 2014).



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              The current version of Megan's Law requires that the Commonwealth prove by

       clear and convincing evidence that an individual is an SVP. 42 Pa.C.S.A.                     §

       9799.24(e)(3). To deem an individual an SVP, the Commonwealth must first show that

       the individual has been convicted of at least one sexually violent offense, as set forth in

       42 · Pa.C.S.A     Section 9799.14. Secondly, the Commonwealth must show that the

       individual 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. When the

      Commonwealth meets this burden, the trial court then makes the final determination on

      the defendant's ·status       as an SVP.     See Commonwealth v.          Prendes, supra;

      Commonwealth v. Askew, 907 A.2d 624, 629 (Pa. Super. 2006), appeal denied, 919

      A.2d 954 (Pa. 2007); Commonwealth v. Kopicz, 840 A.2d 342 (Pa. Super. 2003).

             In this case, Defendant pied guilty to Sexual Abuse of a Child, a felony of the

      third degree, which is a sexually violent offense listed in Section 9799.12. Thus, the first

      element the Commonwealth was required to prove was undisputedly satisfied.

             The second element the Commonwealth was required to prove is that 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. The following elements

      must be considered:

                       An assessment shall include, but not be limited to, an
                       examination of the following:
                       (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 re-offense.

42 Pa.C.S.A. § 9799.24(b).

       Here, the Commonwealth relied upon the report and testimony of Ms. Brust, a

practicing counselor of sex offenders and the SOAB evaluator who performed the court-

ordered sex-offender assessment and prepared the SOAB report. Ms. Brust testified

that in performing her assessment of Defendant, she had considered each of the

statutory factors she was required to consider under Section 9799.24(b). She said that,

based on her consideration of the statutory factors, the facts of this case, arid the facts

pertaining to Defendant's personal and criminal history, she had formed an opinion, to a

reasonable degree of professional certainty, that Defendant meets the criteria for

classification as an SVP. She outlined the facts she considered relevant to each factor

in her written report and discussed the factors and corresponding facts during her

testimony.




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       In summary, based on a review of all available records, including the record in

this case and Defendant's personal and criminal history, and considering the factors

under Section 9799.24, Ms. Brust diagnosed Defendant as having an Other Specified

Paraphilic Disorder and found Defendant's prior and current offenses showed planning

and intent consistent with predatory behavior. Specifically, Defendant "actively searched

for, viewed, saved and masturbated to child pornography" and "[a]t some point, he felt

that this was not enough and he acted out criminally with an actual 14 year old child"

after he "preyed upon the child ... and planned his offense for months[.}" (SOAB report

at 9). Furthermore, Ms. Brust concluded that Defendant "has a sexually deviant pathway

to offending" and his "Other Specified Paraphilia Disorder will cause him to experience

an internal drive towards sexual offending and his disorder predisposes him towards

committing sexual crimes." (SOAB report at 8).

      We found that Ms. Brust's uncontradicted testimony was credible and that her

report, diagnoses, and conclusions were fully supported by both the facts and the law.

Viewed in the light of the applicable ·standards, Ms. Brust's testimony and report are

more than sufficient to establish, by clear and convincing evidence, that Defendant was

an SVP.

      In sum, we believe that our classification     of Defendant as an SVP is fully

supported by the facts and the law and should be affirmed.


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