J-S33042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

MICHAEL W. BRAMWELL

                            Appellant               No. 2687 EDA 2014


            Appeal from the Judgment of Sentence August 18, 2014
               In the Court of Common Pleas of Monroe County
             Criminal Division at No(s): CP-45-CR-0001302-2013


BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                           FILED JUNE 16, 2015

        Michael W. Bramwell appeals from the judgment of sentence imposed

in the Court of Common Pleas of Monroe County after he entered a plea of

nolo contendere to three counts of indecent assault (M1)1 and was

determined by the court to be a Sexually Violent Predator (SVP) pursuant to

the Sexual Offender Registration and Notification Act (SORNA), 42 Pa.C.S.A.

§§ 9799.10-9799.41. Upon careful review, we affirm.

        Bramwell entered a nolo contendere plea to the above charges on

February 6, 2014.        The charges related to sexual abuse perpetrated by

Bramwell against two minor boys who were sons of his long-time friends.



____________________________________________


1
    18 Pa.C.S.A. § 3126(a)(6) & (7).
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Bramwell abused one boy, K.K., when K.K. was eight years old; he abused

the other, also named K.K., from the age of eight until the age of thirteen.

       Following the entry of Bramwell’s plea, the trial court ordered that he

undergo an SVP assessment by the Sexual Offenders Assessment Board

pursuant to 42 Pa.C.S. § 9799.24. Doctor Mary Muscari, a member of the

Board, performed the assessment and, on August 18, 2014, the trial court

held a hearing to determine whether Bramwell was an SVP. After hearing

Dr. Muscari’s testimony, the court concluded that Bramwell was an SVP.

Bramwell was sentenced to an aggregate term of 30 to 96 months’

imprisonment and was ordered to register as a Tier 3 offender. Bramwell

filed a motion for reconsideration of his sentence, which the court denied by

order filed on September 2, 2014. Bramwell filed a timely notice of appeal,

followed by a court-ordered statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). The trial court filed its Rule 1925(a) opinion

on November 4, 2014.

       On appeal, Bramwell claims that the trial court erred in concluding that

he is an SVP. A challenge to a determination of SVP status requires us to

view   the   evidence   presented    in   the   light   most   favorable   to   the

Commonwealth. Commonwealth v. Prendes, 97 A.3d 337, 355 (Pa.

Super. 2014). We may not weigh the evidence or substitute our judgment

for that of the trial court.   Id.   The Commonwealth must establish SVP

status by clear and convincing evidence, which standard requires evidence

that is so clear, direct, weighty and convincing as to enable the trier of fact

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to come to a clear conviction, without hesitancy, of the truth of the precise

facts at issue. Id. The scope of our review is plenary. Id. at 357.

      After conviction but before sentencing, the trial court is required to

order an individual convicted of a sexually violent offense to be assessed by

the Board. 42 Pa.C.S. § 9799.24. Such 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.

          (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.



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           (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.

Id.

      While the Board must examine all statutory factors, there is no

requirement that all of these factors or any particular number of them be

present or absent in order to support an SVP designation. Commonwealth

v. Brooks, 7 A.3d 852, 863 (Pa. Super. 2010).          Rather, the question for the

SVP court is whether the Commonwealth’s evidence, including the Board’s

assessment, shows that the person convicted of a sexually violent offense

has a mental abnormality or disorder making that person likely to engage in

predatory sexually violent offenses. Id. Based on the evidence presented,

the court decides whether a defendant is to be designated an SVP and thus

made subject to SORNA’s registration requirements. Id.

      Here, Dr. Muscari performed an evaluation of Bramwell and testified to

a reasonable degree of professional certainty that, based on his abuse of

young boys aged 8 to 13 over a period of years, Bramwell met the criteria

for pedophilic disorder. The abuse consisted of genital fondling and oral sex

and occurred when the victims were around each other or other children,

which is “consistent with increased risk.” N.T. SVP Hearing, 8/18/14, at 13.

Doctor Muscari testified as to the significance of “increased risk” as follows:




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       We look at increased risk in two different ways. One is in an
       antisocial aspect of not caring about the law, when you’re
       looking about [sic] somebody with a paraphilic[2] disorder and
       there’s increased risk, that shows that there is more difficulty for
       them to control that behavior. When the likelihood of having
       other witnesses to tell, other children, with children somebody
       else could say something, that[] shows more of a difficulty in
       controlling one’s self when one has paraphilia.

Id. Doctor Muscari testified that Bramwell “obtained the victims’ silence by

telling them not to say anything and that it was their little secret.” Id. at

12.   Additionally, Dr. Muscari testified that Bramwell’s paraphilia can be

controlled but not cured, and can wax and wane over time. She also noted

that Bramwell “was a family acquaintance [of the victims’ parents] and he

maintained     that   relationship,     at     least   in   part,   for   the   purpose   of

victimization, so therefore he does meet the predatory criteria.” Id. at 15-

16.

       Based on our review of the evidence presented by the Commonwealth

at Bramwell’s SVP hearing, including Dr. Muscari’s testimony, we conclude

that the trial court did not err in finding, by clear and convincing evidence,

that Bramwell satisfied the criteria to be classified as an SVP.

       Judgment of sentence affirmed.




____________________________________________


2
  “Paraphilia” is defined as a pattern of recurring sexually arousing mental
imagery or behavior that involves unusual and especially socially
unacceptable sexual practices, such as sadism or pedophilia. See Merriam-
Webster, http://www.merriam-webster.com/dictionary/paraphilia.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2015




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