J-S24026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CLIFFORD JOSEPH KAROLSKI

                            Appellant                 No. 1250 WDA 2016


          Appeal from the Judgment of Sentence entered June 27, 2016
                In the Court of Common Pleas of Beaver County
               Criminal Division at No: CP-04-CR-0000762-2015


BEFORE: PANELLA, STABILE, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                              FILED JUNE 28, 2017

        Appellant, Clifford Joseph Karolski, appeals from the judgment of

sentence the Court of Common Pleas of Beaver County entered on June 27,

2016. Appellant argues the Commonwealth failed to offer sufficient evidence

to prove Appellant met the Sexual Violent Predator (SVP) criteria.         We

affirm.

        The underlying facts and procedural history are undisputed.    Briefly,

Appellant pleaded nolo contendere to one count of aggravated indecent

assault of a child less than thirteen years old. Following a hearing, the trial

court concluded Appellant met the SVP criteria, and sentenced him to not


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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less than 50 months nor more than 120 months’ imprisonment. This appeal

followed.

      Appellant’s sufficiency of the evidence argument consists of the

following:

      The absence of the number of factors in the present case
      coupled with the failure of [the SOAB expert] to personally
      interview [Appellant] should have cast some doubt on [the SOAB
      expert’s] opinion that [Appellant] was a sexually violent
      predator. Her admitted use of all the allegations made against
      [Appellant] in his past cases should likewise have raised some
      question[s] as to the objectivity of her determination. Her
      opinion in the instant case was entirely based on hearsay[.]

Appellant’s Brief at 12-13.

      For the reasons explained below, we find Appellant’s challenge

meritless.

      A challenge to a determination of SVP status requires us to view
      the evidence

             in 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.

      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 banc), appeal denied, 608 Pa. 645, 12 A.3d 370
      (2010) (emphasis in original).

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     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),

appeal denied, 105 A.3d 736 (Pa. 2014).




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       Appellant acknowledges in his brief that there is no requirement for

the Commonwealth “to prove all the assessment factors.”1 Appellant’s Brief

at 12.   Yet, Appellant is asking this Court to reverse the trial court’s SVP

determination on the ground that the Commonwealth failed to offer evidence

on some assessment factors. Additionally, Appellant is asking us to reweigh

the absent factors in his favor, and substitute our judgment for that of the

trial court. We must reject both of Appellant’s requests. See Meals, 912

A.2d at 220-24 (the Commonwealth does not have to show that any certain

factor is present or absent in a particular case; the Superior Court’s task is

one of review, and not of weighing and assessing evidence).

       Next Appellant alleges that the expert’s failure to interview Appellant

somehow negatively affected the expert’s analysis and conclusions. There is

no statute or other authority (nor did Appellant cite any) requiring SOAB

members to meet with a defendant for purposes of an SVP assessment.

Similarly, there is no authority (nor did Appellant cite any) for the argument

that the absence of an interview with a defendant is to be or has been

construed against the Commonwealth. The claim is, therefore, rejected.

       Appellant next alleges that the expert in the instant matter “used”

unproven allegations made against him in reaching her opinion. The record
____________________________________________


1
  See 42 Pa.C.S.A. § 9799.24(b) (relating to, inter alia, noninclusive list of
factors to be considered by SOAB member in conducting an SVP
assessment).




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belies Appellant’s allegation. First, the expert          considered “all prior

allegations, if they were dismissed or withdrawn, what the victim stated,

what [Appellant] stated happened, and the ultimate disposition of the case.”

Trial Court Opinion, 10/07/16, at 9. “Considered” does not mean that the

expert used the allegations against him, as Appellant erroneously alleges.

Second, Appellant fails to recognize that controlling caselaw expressly allows

SOAB members to consider the “arrest warrant, affidavit of probable cause,

police reports, charge sheet, statements by the victim, etc. . . . in SOAB

evaluations.” Prendes, 97 A.3d at 362 (citing Pa.R.E. 703, 705) (emphasis

added).2     Thus, under current law, for purposes of an SVP assessment,

members of the SOAB can, and routinely do, consider information that often

contains “unproven allegations.”           Defendant can challenge the unproven

allegations, but such challenges concern, as noted below, the weight, not the

sufficiency of the evidence.
____________________________________________


2
    Additionally, Section 9799.24, in relevant part, states:

        All State, county and local agencies, offices and entities in this
        Commonwealth, including juvenile probation officers, shall
        cooperate by providing copies of records and information as
        requested by the [State Sexual Offender Assessment Board
        (SOAB)] in connection with the court-ordered assessment and
        the assessment requested by the Pennsylvania Board of
        Probation and Parole or the assessment of a delinquent child
        under section 6358 (relating to assessment of delinquent
        children by the State Sexual Offenders Assessment Board). . . .

42 Pa.C.S.A. § 9799.24(c).




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        Finally, despite the heading and the wording of his argument,

Appellant actually is challenging the weight of the SOAB expert’s testimony,

seeking, in the process, reweighing of the expert’s testimony in his favor.

He is entitled to no relief.        See Meals, 912 A.2d at 223-24;3 see also

Fuentes, 991 A.2d at 944 (appellant’s argument that the evidence for the

SVP determination was insufficient because expert’s opinion was based

solely on appellant’s prior criminal record and police reports was in fact a

challenge to the weight of the evidence).        Additionally, as noted above,

weight of the evidence is not for us to decide.       Meals, 912 A.2d at 223

(Regarding sexually violent predator assessments, “[t]he task of the

Superior Court is one of review, and not of weighing and assessing evidence

in the first instance.”).      Thus, to the extent Appellant’s challenge can be

construed as a challenge to the weight of the evidence, we conclude the

challenge is unavailing.

        Judgment of sentence affirmed.

____________________________________________


3
    In Meals, the Supreme Court noted:

        To the extent [defendant] 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.

Meals, 912 A.2d at 223-24 (footnote omitted).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/2017




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