J-S77016-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

FRANK ADAM YEAGER

                            Appellant                   No. 3351 EDA 2013


            Appeal from the Judgment of Sentence October 21, 2013
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0000377-2013


BEFORE: STABILE, J., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY JENKINS, J.:                         FILED DECEMBER 22, 2014

        Appellant, Frank Adam Yeager, appeals from the judgment of sentence

entered in the Lehigh County Court of Common Pleas following his bench

trial conviction for attempted rape.1 We affirm.

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

facts and procedural history of this case. Therefore, we have no reason to

restate them.

        Appellant raises the following issues for our review:

           WHETHER THE [TRIAL] COURT ERRED IN CLASSIFYING
           [APPELLANT] AS A SEXUALLY VIOLENT PREDATOR [(SVP)]
           WHEN THE COMMONWEALTH FAILED TO PROVIDE THE
           CLEAR AND CONVINCING EVIDENCE NECESSARY FOR

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 901(a) [18 Pa.C.S. § 3121(a)(1)].
J-S77016-14


           SUCH A CLASSIFICATION AS PER TITLE 42 [PA.C.S.] §
           9794.5?

           WHETHER THE [TRIAL] COURT ABUSED ITS DISCRETION
           IN IMPOSING A MANIFESTLY UNREASONABLE MINIMUM
           SENTENCE THAT EXCEEDED THE AGGRAVATED RANGE OF
           THE SENTENCING GUIDELINES, WAS NOT SUPPORTED BY
           A FULL REVIEW OF ALL APPROPRIATE FACTORS
           APPLICABLE TO [APPELLANT’S] CIRCUMSTANCES AND
           WAS BASED ON OF THE SPECULATIVE FUTURE CONDUCT
           OF [APPELLANT]?

Appellant’s Brief at 7.

      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).

      Regarding Appellant’s discretionary aspects of sentencing claim, we

observe:

           [T]he proper standard of review when considering whether
           to affirm the sentencing court's determination is an abuse
           of discretion. ...[A]n abuse of discretion is more than a
           mere error of judgment; thus, a sentencing court will not
           have abused its discretion unless the record discloses that
           the judgment exercised was manifestly unreasonable, or

                                          -2-
J-S77016-14


         the result of partiality, prejudice, bias or ill-will. In more
         expansive terms, our Court recently offered: 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.

         The rationale behind such broad discretion and the
         concomitantly deferential standard of appellate review is
         that the sentencing court is in the best position to
         determine the proper penalty for a particular offense based
         upon an evaluation of the individual circumstances before
         it.

Commonwealth v. Moury, 992 A.2d 162, 169-70 (Pa.Super.2010)

(internal citations omitted).

      Further, we note that “[c]hallenges to the discretionary aspects of

sentencing    do   not   entitle   a   petitioner   to   review   as    of   right.”

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super.2011).                   Before

this Court can address such a discretionary challenge, an appellant must

comply with the following requirements:

         An appellant challenging the discretionary aspects of his
         sentence must invoke this Court’s jurisdiction by satisfying
         a four-part test: (1) whether appellant has filed a timely
         notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether
         the issue was properly preserved at sentencing or in a
         motion to reconsider and modify sentence, see
         Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a
         fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
         substantial question that the sentence appealed from is
         not appropriate under the Sentencing Code.

Allen, 24 A.3d at 1064.




                                       -3-
J-S77016-14


      Here, Appellant filed a timely notice of appeal, and preserved his

issues in a post-sentence motion.            Further, Appellant’s brief includes a

concise statement of the reasons relied upon for allowance of appeal

pursuant to Pa.R.A.P. 2119(f).            See Appellant’s Brief, p. 10.                Further,

Appellant    has    raised   a   substantial     question   for    our       review.       See

Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa.Super.2002) (holding a

“claim that the sentencing court imposed an unreasonable sentence by

sentencing outside the guideline ranges presents a ‘substantial question’ for

the Superior Court’s review.”).       Thus, we can properly address Appellant’s

two issues on appeal.

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

applicable law, and the well-reasoned opinion of the Honorable William E.

Ford, 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, dated March 13, 2014, at 6-16)

(finding:    (1) Commonwealth proved Appellant was an SVP with clear and

convincing evidence, including Sexual Offenders Assessment Board (SOAB)

licensed psychologist’s assessment, which considered all relevant factors

listed in 42 Pa.C.S. § 9799.12, including Appellant’s predatory behavior and

mental abnormality of paraphilia in determining Appellant’s SVP status; (2)

court properly sentenced Appellant outside of guidelines where sentencing

guidelines    did   not   provide   sufficient    protection      for    community        from


                                          -4-
J-S77016-14


Appellant, considering Appellant’s premeditated plan to rape victim while

Appellant was under ARD supervision, Appellant’s status as an SVP, his

alcoholism,     and   his   failure   to   properly    seek    assistance      for    deviant

compulsions despite recognition of mental health problems; court also

considered significant impact of crime on victim, who was a total stranger;

court considered mitigating factors such as Appellant’s own victimization

over    his     lifetime,    supportive       family    and         friends,     Appellant’s

acknowledgement        of   wrong-doing,      his   humble         approach    and     sincere

apology; and court set forth sentencing guidelines on record and stated all

reasons   for    deviating    from     the   guidelines       at    sentencing       hearing).

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

       Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2014




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IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA

                                  CRIMINAL DIVISION


COMMONWEALTH OF
PENNSYLVANIA                                          No. CP-39-CR-0000377-2013

        v.                                            (Superior Court No. 3351 EDA 2013)

FRANK ADAM YEAGER,

               Defendant

                                        ***** * * *
Matthew S. Falk, Chief Deputy District Attorney,
      on behalf of the Commonwealth


Michael E. Brunnabend, Assistant Public Defender,
      on behalf of the defendant

                                       ********
William E. Ford, Judge


                             P3.R.A.P. 1925(3) 0 PIN ION

       Defendant, Frank Adam Yeager, entered a guilty plea to attempted rape. The court

also found defendant to be a sexually violent predator (SVP) and then sentenced him to

confinement in the state penitentiary for not less than ten years to not more than twenty

years. Defendant timely filed the present appeal to the Superior Court of Pennsylvania. In

the appeal, defendant challenges the sentence and the decision that he is an SVP. The

court's decisions on these subjects were proper as I explain in this opinion filed under

Pa.R:A.P. 1925(a).



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IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA

                                  CRIMINAL DIVISION


COMMONWEALTH OF
PENNSYLVANIA                                          No. CP-39-CR-0000377-2013

        v.                                            (Superior Court No. 3351 EDA 2013)

FRANK ADAM YEAGER,

               Defendant

                                        ***** ** *                                                ,. "-"


Matthew S. Falk, Chief Deputy District Attorney,
                                                                                ~,'--
      on behalf of the Commonwealth
                                                                                ~;~~:-:



Michael E. Brunnabend, Assistant Public Defender,
      on behalf of the defendant

                                       ********
William E. Ford, Judge


                             Pa.R.A.P. 1925(a) 0 PIN ION

       Defendant, Frank Adam Yeager, entered a guilty plea to attempted rape. The court

also found defendant to be a sexually violent predator (SVP) and then sentenced him to

confinement in the state penitentiary for not less than ten years to not more than twenty

years. Defendant timely filed the present appeal to the Superior Court of Pennsylvania. In

the appeal, defendant challenges the sentence and the decision that he is an SVP. The

court's decisions on these subjects were proper as I explain in this opinion filed under

Pa.R:A.P. 1925(a).
                                                                            Circulated 12/04/2014 12:26 PM




                                      Procedural History

          On April 29, 2013, defendant entered a guilty plea to Count I of the criminal

information, attempted rape, 18 Pa.C.S. § 3121(a)(I). Under a plea bargain, the

Commonwealth withdrew two firearms and a possession of instruments of crime charges.

There was no plea bargain as to the sentence for the attempted rape.

          Attempted rape is a felony of the first degree and is a Tier III Megan's Law

offense, 42 Pa.C.S. § 9799.l4(d). Because this is a sexually violent offense, after

defendant entered his guilty plea, I directed that the Commonwealth's Sexual Offenders

Assessment Board (SOAB) assess the defendant to assist in determining if he is an SVP,

42 Pa.C.S. § 9799.24(a). I also ordered the preparation of a pre-sentence investigation

report.

          After completion of SOAB's assessment, the Commonwealth filed

"Commonwealth's Motion to Classify Defendant as a Sexually Violent Predator" on

August 1, 2013.

          On October 21, 2013, I conducted a hearing on the Commonwealth's motion as

required by 42 Pa.C.S. § 9799.24(e). At the conclusion of that hearing, I advised the

parties that the court found defendant to be an SVP as defined at 42 Pa.C.S. § 9799.12.

After the presentation of additional evidence, I sentenced the defendant for the attempted

rape to state confinement of not less than ten years to not more than twenty years.

          On October 30, 2013, the defendant filed a post-sentence motion. I denied that by

order dated November 5, 2013. Defendant filed the present timely notice of appeal to the

Superior Court on December 3, 2013.



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          In response to an earlier order, the defendant filed "Defendant's Concise Statement

   of Matters Complained on Appeal" (Concise Statement) on December 18,2013. There are

   three allegations of error in the Concise Statement. The first two are challenges to the

   propriety of the sentence. The third contests the SVP determination.


                                      Factual Background

          The victim was a saleswoman for Pulte Homes at its new development in Upper

  Macungie Township, Lehigh County. On November 25,2012, just before closing time at

  7:00 p.m., she was alone in the office at the development. The defendant entered the office

  and asked the victim if she would show him one of the model homes. The victim became

  suspicious because of the way the defendant was acting and because he did not ask for

  information about the home. She told him to look at the home himself. He went to the

  model home and was there for about 45 minutes. It was defendant's plan to get the woman

  alone in an upstairs bedroom of the model home and to rape her there. When he was

  upstairs in the model home, he looked from the windows to see if the victim was coming.

  To prepare for the rape, he closed the curtains in a bedroom and turned offthe lights.

          When the victim did not come to the model home, defendant returned to the office

  and told her that there was a water leak in the home and he wanted to show it to her. She

  was still suspicious and she refused to go with him. The defendant continued to ask her to

  inspect the leak. A male co-worker of the victim then entered the office at which point the

. -- defendant quickly left. Defendant went to his pickup truck and waited for the male co-

  worker to leave. After a while, the defendant got tired of waiting and drove off.

          In various statements, the defendant admitted that it was his plan to lure the victim


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into a bedroom on the second floor of the model home and to rape her there. He stated that

he chose the office closing time because ofthe likelihood that the woman would be alone.

       Defendant fantasized about raping women for many months before this incident.

He developed a plan for the rape of this victim. Included in his statement to the pre-

sentence investigator was the following:

                       I did a massive on-line search of these people
              (realtors) . .. I had a plan of action... For three months, I
              drove around every Sunday. I used my truck-driving skills
              to map out my route. Once I lost my job, I really put
              myself into it. It was full-time work. I want to attack every
              girl I see so I was drinking all the time. .. I had a profile.
              I wanted someone, one of them pretty looking Paris Hilton
              type thing. I had a very specific guideline. .. The urges
              were so compelling, I was fighting it with alcohol.

       On December 3, 2012, the police executed search warrants of the defendant's

pickup truck and his home. At the defendant's home, they found numerous realty

packages, the victim's business card and handwritten notes and pictures drawn by the

defendant about rape. Among the items was a note (Commonwealth's Exhibit 2, 10/21113

hearing) written by the defendant which begins "11115/12, 7:14 a.m .. " The attempted rape

occurred on November 25,2012, later in the day. The note reads:

                      If your (sic) reading this, I found a realtor woman
              and raped her. I have been planning and have wanted this
              my whole life. . . . After the rape, I have to shut down
              because I know I will either get caught and go to jail the
              rest of my life or keep raping until I am stopped. I know it
              is wrong but I cannot fight the urges. I enjoy this when I sit
              in the back of some shopping center when there (sic) about
              to close the hair salon and a woman comes out all alone. I
              sit, watch her, rubbing myself with a knife in one hand
              knowing I can rape her at any time or go into an open
              house in some new development and no one else is around
              but some realtor bitch and that I could rape her and know


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               (sic) one will hear her scream. No one will come by or in
               the park watch some bitch jogging and no one else is
               around. I truly enjoy the hunt and cannot wait for my prize.

        Among defendant's materials at his home was a suicide note which includes the

statement that he planned to rape two other realtors instead of the victim but the other

realtors were accompanied by a number of people. Defendant wrote that he would kill

himself after the rape by setting the model home on fire. There were also drawings by the

defendant of him raping women.

       When the state police executed the search warrant on defendant's pickup truck,

they found matches, a lighter, knives, binoculars, a ski mask, gloves, rope, two handguns,

several magazines and ammunition, a chain, padlocks, duct tape and realty brochures. In

none of the hearings did defendant contest what is described to this point in the Factual

Background section.

       Defendant had contemplated suicide often before the date of this crime. Before he

was arrested, he recognized that he had mental health issues. He pursued only limited talk

therapy for his psychological problems. Defendant has regularly and increasingly abused

alcohol over the past decade. There were many episodes of defendant's becoming

intoxicated in the weeks leading up to this crime. Defendant admitted that his alcoholism

fueled what he planned and what he did to the victim.

       There is considerable believable evidence in the record about defendant's being

cruelly ridiculed throughout his life due to his physical appearance. Defendant was raised

by caring parents. He lived with them until he was arrested. Defendant's parents took

extraordinary measures to assist him with his physical issues and to otherwise attempt to



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properly raise and then guide him. Defendant has family and friends who trust and respect

him.

         The victim provided an impact statement for the preparation of the pre-sentence

report. She testified at the sentencing. She has been significantly affected by defendant's

attempted rape of her. While she continues to work in real estate, she considers changing

careers. Her work has become a "constant source of fear and anxiety." Every morning she

checks the Megan's Law updates and now carries some unspecified item for protection

because of her fear of unknown people and isolated places. Her work performance has

suffered. She feels stress when unknown people enter her office. Her family has been

affected because of their concern for her. Her co-workers have taken on added

responsibilities so she is not alone in the office. She has entered therapy to cope with the

effects of this crime which include panic attacks. She stated, "The most devastating

consequence of this crime has been that my ability to trust people has been taken away,

and I no longer view people the way I once did."

        The victim, the prosecuting state trooper and the prosecuting attorney asked that the

maximum sentence be imposed primarily because of the danger that defendant poses to

women.


                            Discussion and Conclusions of Law

The Sentence

       Defendant's first allegation of error in the Concise Statement is: "The sentence

imposed far exceeded the sentence guidelines and was the maximum allowed by law. The

court failed to set forth distinct and non-repetitive reasons for the sentence deviation or


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otherwise relied on factors or considerations that were either otherwise already factors in

the guideline calculations or were irrelevant to any deviation." The second contention in

the Concise Statement, which is related to the first, is: "The court imposed the deviation

based upon speculation or fear of future danger the defendant might pose to society

without justification." Both of these contentions lack merit.

          In explaining the applicable standard of review, the Superior Court has stated:

                          Sentencing is a matter vested in the sound discretion
                 of the sentencing judge and a sentence will not be disturbed
                 on appeal absent a manifest abuse of discretion. In this
                 context, an abuse of discretion is not shown merely by an
                 error in judgment. Rather, the appellant must establish, by
                 reference to the record, that the sentencing court ignored or
                 misapplied the law, exercised its judgment for reasons of
                 partiality, prejudice, bias or ill-will, or arrived at a
                 manifestly unreasonable decision.

Commonwealth v. Fullin, 892 A.2d 843,847 (Pa.Super. 2006) (citing Commonwealth v.

Rodda, 723 A.2d 212,214 (Pa.Super. 1999)(en bane).

          Defendant does not contest the legality of his sentence nor assert that the sentence

violated the plea bargain he entered with the Commonwealth. Also, defendant does not

claim innocence. Rather, with these sentencing challenges raised on appeal, the defendant

has implicated the discretionary aspects ofthe sentence. Commonwealth v. Griffin, 804

A.2d 1, 7 (Pa.Super 2002).

          In Commonwealth v. Hyland, 875 A.2d 1 175 (pa.Super. 2005), the Superior Court

stated:

                         Challenges to the discretionary aspects of
                 sentencing do not entitle an appellant to appellate review as
                 of right (citation omitted). Prior to reaching the merits of a
                 discretionary sentencing issue: [the Superior Court]


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               conduct[ s] a four part analysis to determine: (l) whether
               appellant has filed a timely notice of appeal, see Pa.R.A.P.
               902 and 903; (2) whether the issue was properly preserved
               at sentencing or in a motion to reconsider and modify
               sentence, see Pa.R.Crim.P. 1410 [now Rule 720]; (3)
               whether appellant's brief has a fatal defect, Pa.R.A.P.
               2119(f); and (4) whether there is a substantial question that
               the sentence appealed from is not appropriate under the
               Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Id at 1183 (citations omitted).

       Defendant timely filed a notice of appeal. Additionally, the challenge to the

discretionary aspects of the sentence was properly preserved in that defendant filed a post-

sentence motion which raised this subject. The adequacy of defendant's appellate brief is a

determination to be made by the Superior Court. Accordingly, the only issue for me to

address is whether "there is a substantial question that the sentence appealed from is not

appropriate under the Sentencing Code."

       A substantial question exists "only when the appellant advances a colorable

argument that the sentencing judge's actions were either: (1) inconsistent with a specific

provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie

the sentencing process." Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000)

(quoting Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super. 1999».

       Pertinent to this case, it has been held that "[a] claim that the sentencing court

imposed an unreasonable sentence by sentencing outside the guideline ranges presents a

'substantial question' for the Superior Court's review." Commonwealth v. Griffin, 804

A.2d at 7 (citation omitted). Here, the sentence I imposed exceeded the sentence

guidelines and was the maximum allowed by law. Because defendant's sentencing



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challenge potentially raises a substantial question, I now explain my reasons for imposing

defendant's sentence.

        Sentencing judges are encouraged to adhere to the sentencing guidelines from the

Pennsylvania Commission on Sentencing. Commonwealth v. Mouzon, 571 Pa. 419, 423-

24, 812 A.2d 617,620 (2002). However, it is within the discretion of the courts to

sentence outside the guidelines. Id at 425, 812 A.2d at 621. If the sentence imposed is

outside the guidelines, the trial court must indicate that it understood the suggested range

and make its reasons for imposing the sentence a part of the record. Commonwealth v.

Tirado, 870 A.2d 362, 366 (Pa.Super. 2005); 42 Pa.C.S. § 9721(b).

       I set forth the guidelines on the record. N.T., 10/21113, pp. 101-102. Before I

imposed the sentence, I then stated the reasons for the sentence. I noted important

mitigating factors including the defendant's own victimization over a lifetime, supportive

family and friends, his acknowledgment of wrong-doing, his humble approach and sincere

apology. N.T., (10/21113), pp. 140-141. There were other mitigating factors, including

those in the comprehensive presentence report, which I did not state at that point but which

I considered. The existence of all of these mitigating factors made the imposition of the

sentence in this case difficult. I gave appropriate weight to these mitigating factors. I then

set forth specific reasons for deviating from the sentencing guidelines.

       At the sentencing hearing, the district attorney, Matthew Falk, Esquire, stated a

number of reasons why I should deviate from the guidelines and impose the maximum

sentence. His reasons were accurate and convincing. After he spoke, I advised the parties,

"I adopt the reasons stated by the district attorney for deviating from the guidelines" except



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for his argument about the effect ofthe crime on other realtors. N.T., 10/21113, p. 143.

The reasons were defendant's premeditated plan to rape the victim, the significant impact

of the crime on the victim, defendant's being on ARD supervision at the time that he

committed the attempted rape, the defendant's being a total stranger to the victim,

defendant's being found an SVP (see Commonwealth v. Shugars, 895 A.2d 1270, 1275

(Pa.Super. 2006)), his out-of-control and untreated alcoholism, and defendant's seeking

only preliminary therapeutic assistance for his deviant compulsions despite his recognition

of his mental health problems. I pointed out how the defendant has acted on certain

fantasies and obsessions by investigating women whom he targeted and by then stalking

them. There was the "rape kit" that defendant assembled which included handguns, mask

and duct tape. The defendant's crime had a devastating effect on the victim after two

contacts with her on the day of the crime in defendant's attempts to lure her into the model

home. Finally, I explained to the parties the predominating factor for deviation, namely,

the defendant is a dangerous man.

       r concluded that the guidelines, even in the aggravated range, did not provide
sufficient protection for the community from defendant based on his crime. A sentence

within the guidelines would have been inadequate in that it would not provide enough time

within which to get to the root of defendant's deep-seated rehabilitative needs, provide

appropriate punishment and protect women from him.

       r considered the general standards for sentencing stated at 42 Pa.C.S. § 9721 (b)
which are "the protection of the public, the gravity of the offense as it relates to the impact

on the life of the victim and on the community, and the rehabilitative needs of the



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defendant." See Commonwealth v. Walls, 592 Pa. 557, 568-69, 926 A.2d 957, 964 (2007).

As to defendant's rehabilitative needs, I told him:

                       You should also recognize that when the sentence
               is imposed today, it is not the end of the world. My hope,
               of course, our hope is that in the course of imprisonment,
               you continue to get treatment for the various issues that you
               have, and actually in our state system, we have a better
               opportunity for that than we have in the county system.
               The real impetus, the real purpose of a sentence is hoping
               that you get a grasp of these many issues and you never
               harm anybody again.

N.T., 10/21/13, pp. 140-141. (As the parties are aware, on the sentencing order and in a

follow-up letter to the corrections authorities, I elaborated on defendant's mental health and

alcohol issues to assist in the classification process.) I also wanted the sentence to serve as

a specific deterrent from defendant's commission of additional crimes.

       Defendant's contention that I speculated about future misconduct in reaching the

conclusion that he is a danger to the community is wrong. The sentencing judge is charged

with the responsibility of determining whether a defendant is a danger to the community. I

formed my conclusions on this topic from the facts, not from unsupported conjecture.

       In summary, I considered the sentencing guidelines but I deviated from them for all

of the reasons I have set forth. I advised the parties of all these reasons. The sentence that

I then entered was reasonable and necessary with full consideration of the standards of the

Sentencing Code.


Sexually Violent Predator Determination

       In his third and final allegation of error, defendant alleges: "The court's

determination of defendant as a sexually violent predator was not supported by sufficient


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evidence or was otherwise against the weight of all the evidence presented." For the court

to make this determination, the Commonwealth must prove that the defendant is a sexually

violent predator by clear and convincing evidence. 42 Pa.C.S. § 9799.24(e)(3). The

Commonwealth met its burden of proof.

        SVP is defined at 42 Pa.C.S. § 9799.12 as

               an individual convicted of an offense specified in ...
               42 Pa.C.S. § 9799.14(d) ... who, on or after the effective
               date of this subchapter, is determined to be a sexually
               violent predator under section 9799.24 (relating to
               assessments) due to a mental abnormality or personality
               disorder that makes the individual likely to engage in
               predatory sexually violent offenses.

       Doctor Thomas Haworth, the licensed psychologist who conducted the SOAB

assessment, considered all of the relevant factors listed at 42 Pa.C.S. § 9799.24(b)(l) in

arriving at his conclusion that defendant is an SVP. He testified about the factors at the

Megan's Law hearing. Also, Doctor Robert Gordon, the licensed psychologist who

testified for the defense, considered these factors in concluding that defendant is not an

SVP. I evaluated the testimony of these experts and analyzed the factors in deciding that

defendant is an SVP. As to the factors, each must be examined, but there is no

               requirement that all of them or any particular number of
               them be present or absent in order to support an SVP
               designation. The factors are not a checklist with each one
               weighing in some necessary fashion for or against SVP
               designation. Rather, the presence or absence of one or
               more factors might simply suggest the presence or absence
               of one or more particular types of mental abnormalities.

Commonwealth v. Feucht, 955 A.2d 377,381 (Pa.Super. 2008) (internal citation omitted).

Instead, "[t]he question for the SVP court is whether the Commonwealth's evidence,



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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

       It is undisputed that defendant was convicted of attempted rape, a sexually violent

offense listed at section 42 Pa.C.S. § 9799.14(d). Therefore, the issue was whether

defendant suffered from a "mental abnormality or personality disorder that makes the

individual likely to engage in predatory sexually violent offenses."

       Mental abnormality is defined as "[a1congenital or acquired condition of a person

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." 42 Pa.C.S. § 9799.12.

       According to Doctor Haworth, the psychologist from the SOAB, defendant has the

mental abnormality of paraphilia, not otherwise specified (NOS). Paraphilia (NOS) is a

disorder which is listed in the Diagnostic and Statistical Manual IV (DSM-IV). Paraphilia

(NOS) is also listed as a mental health disorder in DSM-5, which is the current DSM.

       In the SOAB report (Commonwealth Exhibit C-1, 10/21113), Doctor Haworth,

paraphrasing the DSM-/V, defined paraphilia (NOS) "as being characterized by recurrent,

intense, sexually arousing fantasies, sexual urges, or behaviors generally involving ...

non-consenting persons that occur over a period of at least six months," and "the individual

has acted upon these urges or they have caused him marked distress or interpersonal

difficulties." Doctor Haworth explained that these urges must be "recurrent, chronic, and

lifelong" to meet this definition. During Doctor Haworth's testimony, he again gave this



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definition of paraphilia (NOS). N.T., 10/21/13, pp. 19-21. Doctor Haworth agrees that

paraphilia (NOS) is accurately defined in the DSM. After addressing defendant

specifically, Doctor Haworth gave his convincing expert opinion that defendant has this

paraphilia.

        Doctor Robert Gordon, the defense licensed psychologist, testified that defendant

does not have paraphilia (NOS) as he would define it and, therefore, defendant is not an

SVP. He agrees though that the definition of paraphilia (NOS) used by Doctor Haworth is

essentially the same in the DSM-IVas it is in the DSM-5. Doctor Gordon does not ascribe

to this definition given by Doctor Haworth and set forth in the DSM. He believes it is "too

confusing, too vague, too broad, too broadly worded." N.T., 10/21/13, pp. 82-84. Doctor

Gordon acknowledges that defendant meets the criteria for paraphilia (NOS) as it is

inaccurately (according to him) defined in the DSM. N.T., 10/21/13, pp. 77-78. It appears

that Doctor Gordon's specific objections to the paraphilia (NOS) definition in the DSM are

that the DSM inserted what he refers to as an arbitrary minimum time of six months for

having the condition and the definition in the DSM does not adequately take into account

the "subjective distress" that one must suffer in order to have this condition. N.T.,

10/21/13, pp. 82-83. Further, according to Doctor Gordon, defendant had fantasies and

nothing more. Defendant would never act on his fantasies. I rejected that testimony.

Defendant did act on his fantasies in his preparations and attempts to lure the victim.

       After consideration of the testimony of these experts and the specific facts of this

case, it was my finding that the defendant suffers from the mental abnormality of

paraphilia (NOS) as described by Doctor Haworth and defined in the DSM. Defendant has



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had this condition from a point in childhood. His fantasies and urges were his primary

preoccupation for years. The paraphilia (NOS) led to the sexual offending in this case.

        I agreed with Doctor Haworth that defendant's condition is "recurrent, chronic and

lifelong." Perhaps the defendant will reach the point through therapy that he can control

these urges but defendant has only begun that process. I also accepted Doctor Haworth's

testimony that defendant's condition overrode his ability to control these deviant urges and

fantasies. It was evident from defendant's statements and writings that he has always

recognized the criminality of action on his fantasies. Despite that knowledge, he made his

preparations and tried to rape this young woman. Doctor Haworth was accurate that

defendant "remains at an elevated risk for future sexually violent behavior."

       Next, I had to decide if the mental abnormality makes the defendant likely to

engage in predatory sexually violent offenses. "Predatory" is 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.

       Doctor Haworth, the SOAB evaluator, confirmed what is probably obvious from

the overwhelming evidence in this case that the defendant engaged in predatory behavior

in his planning and victimization of the young woman. N.T., 10/21113, pp. 21-22.

According to Doctor Haworth, the victim was a stranger to the defendant even though the

defendant may have watched her on previous occasions. She was a non-consenting

individual to what defendant planned for her. According to Doctor Haworth, defendant's

plan was victimization of this stranger. Thus, defendant engaged in predatory conduct. I



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conclude that he is likely to engage in it again without the present sentence.

       Defendant was properly found to be a sexually violent predator.

       There is no merit to this appeal and, respectfully, it should be denied.




March 13, 2014                                ~~.~.LIAM E. FORD, JUDGE




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