J-S03017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ROBERT JAMES HAVLE, III

                            Appellant                 No. 581 WDA 2016


         Appeal from the Judgment of Sentence dated March 24, 2016
              In the Court of Common Pleas of Bedford County
             Criminal Division at No(s): CP-05-CR-0000066-2015

BEFORE: OLSON, J., SOLANO, J., and STRASSBURGER, J.*

MEMORANDUM BY SOLANO, J.:                                  FILED MAY 22, 2017

        Robert James Havle, III, Appellant, appeals from the portion of his

judgment of sentence in which the trial court classified him as a sexually

violent predator (“SVP”) under the Sex Offender Registration and Notification

Act (“SORNA”), 42 Pa.C.S. §§ 9799.10 to 9799.41. We affirm.

        When Appellant was 32 years old, he engaged in a sexual relationship

with the victim in this case, who had just turned 13 or 14 years old at the

time,1 and who is Appellant’s cousin. Appellant initiated and cultivated the

relationship, which lasted for approximately two years. Appellant pressured
____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
1
  The confusion about the victim’s age stems from a discrepancy in what she
told the police regarding her date of birth, the date of her first sexual
encounter with Appellant, and the age she was on that date. See N.T.,
3/24/16, at 59-69. The victim was either 12 or 13 years old during her first
sexual encounter with Appellant, and had just turned either 13 or 14 years
old when they first had intercourse.
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the victim into performing various sexual acts, and told the victim not to tell

anyone about the “relationship” because it would “break up the family,”

result in criminal charges against Appellant, and cause Appellant to commit

suicide. See Defendant’s Ex. 1 (Criminal Complaint); Commonwealth’s Ex. 2

(Report of Herbert E. Hays).

        On July 9, 2015, Appellant, who was then 38 years old, pleaded guilty

to five counts of statutory assault and five counts of aggravated indecent

assault on a person less than 16 year of age.2 Pursuant to a plea agreement,

Appellant was sentenced to four to eight years’ incarceration, to be followed

by ten years’ probation.

        Because the offenses of which Appellant was convicted are classified

as “sexually violent offenses” under SORNA, see 42 Pa.C.S. §§ 9799.12,

9799.14, the court was required to hold a hearing to determine whether he

is an SVP. Id. § 9799.24(e). Therefore, on March 24, 2016, immediately

prior to Appellant’s sentencing proceeding, the trial court held a separate

hearing to determine whether Appellant had that status.3


____________________________________________
2
    18 Pa.C.S. §§ 3122.1 and 3125(a)(8), respectively.
3
  Under SORNA, the defendant’s status initially is assessed by the State
Sexual Offenders Assessment Board. 42 Pa. C.S. § 9799.24(a). After that
Board prepares a report and presents it to the Commonwealth, the court
holds a hearing at which the Commonwealth must prove by clear and
convincing evidence that the SVP designation is appropriate. See
Commonwealth v. Feucht, 955 A.2d 377, 380 (Pa. Super. 2008)
(description of process under earlier version of statute that still applies
under current version).


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       SORNA provides that a person may be designated an SVP because of

“a mental abnormality or personality disorder that makes the individual

likely to engage in predatory sexually violent offenses.” 42 Pa.C.S. §

9799.12. A “mental abnormality” is defined as a “congenital 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.” Id. “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.” Id. The court received expert evidence

from each party on whether Appellant should be classified as an SVP, and it

received reports by each expert into evidence.4

       To support a finding that Appellant is an SVP, the Commonwealth

presented the testimony of Herbert Edwin Hays, a member of the State

Sexual Offenders Assessment Board (“the Board”), who was admitted as an

“expert in the treatment, management, and the assessment of sexual

offenders.” N.T. at 10. Mr. Hays opined that Appellant has hebephilia, a




____________________________________________
4
  Neither party objected to the classification of the other party’s witness as
an expert. Appellant objected to the entry of the Commonwealth expert’s
report into evidence on the ground that it was hearsay and cumulative. That
objection was overruled. See N.T. at 30-31.


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sexual attraction to underage postpubescent individuals. Id. at 20-21, 24.5

Mr. Hays explained that Appellant groomed and coerced the victim before

engaging in a sexual relationship for several years, which the expert

considered to be predatory behavior covering a significant time period. Id.

at 12-15, 28.6 Mr. Hays stated that hebephilia is a lifetime condition; that

statements by the victim indicated that Appellant’s condition overrode his

control; and that because Appellant’s mental abnormality drove his sexual

misconduct, it would be likely for Appellant to reoffend. Id. at 25-27.7



____________________________________________
5
 The expert stated that while he opined that Appellant is a hebephiliac for
purposes of the SVP statute, he was not rendering a “psychiatric or
psychological . . . diagnosis.” N.T. at 24, 27-28.
6
  Regarding the predatory nature of Appellant’s abnormality, the expert
opined:

       When [Appellant] entered a shower with the victim and then
       gave her a sensual massage and also kissed her at the time he
       initiated a relationship with the victim in whole or in part in order
       to facilitate victimization. When he told her not to tell anyone
       about their sexual relationship and if she did tell he would go to
       jail and the family would “fall apart” he established, maintained
       and promoted the sexual relationship with the victim in order to
       facilitate continued victimization. There is sufficient evidence for
       predatory behavior.

Commonwealth’s Ex. 2 at 7; see also N.T. at 28.
7
  The report stated, “Considering the length of time and the persistence of
the sexual acts in the Instant Offense there is sufficient evidence that future
sexual offending is likely if given unsupervised access to young naïve
impressionable teenage girls.” Commonwealth’s Ex. 2 at 6.



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       Appellant presented Dr. Timothy P. Foley, who was admitted as an

expert in the same field as that of as Mr. Hays. N.T. at 70. Dr. Foley opined

that Appellant did not meet the criteria for having a mental abnormality. Id.

at 72. He stated that hebephilia is not an accepted medical diagnosis

according to the Fifth Edition of the DIAGNOSTIC    AND   STATISTICAL MANUAL   OF

MENTAL DISORDERS (“DSM-5”), 8 id. at 74-75, 81-82, and that Appellant’s

sexual interest in a post-pubescent girl is “just fine,” id. at 79. Regarding

the likelihood that Appellant would reoffend, Dr. Foley used an actuarial tool

called the “Static-99R,”9 and found that Appellant “has a very low risk for

future sexual misconduct.” Id. at 77. The expert reasoned that because

Appellant has had sexual relationships with persons older than 18, there is
____________________________________________
8
  We have described the DSM as a “categorical classification system that
divides mental disorders into types based on criteria sets with defining
features” and have cited experts’ opinions that the DSM is “an authoritative
compilation of information about mental disorders and represents the best
consensus of the psychiatric profession on how to diagnose mental
disorders.” See Commonwealth v. Hollingshead, 111 A.3d 186, 186 n.4
(Pa. Super.) (citation omitted, brackets in original), appeal denied, 125
A.3d 1199 (Pa. 2015).
9
 This is a classification system used to predict future recidivism. Dr. Foley
defined the Static-99R as —

       a statistical method based on the records of about 30,000 sex
       offenders after release to the community. The items – there are
       ten [–] are generated statistically. It adheres to no theory. It’s
       just measuring behavior. It allows you . . . to class[ify] the
       person, put the person into a group of individuals with known
       behavior five to ten years after release [in]to the community.

N.T. at 77.



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no evidence that it was “preferred or obligatory that he have sexual contact

with a minor.” Id. at 79.

       At the conclusion of the hearing, the trial court ordered that Appellant

be classified as an SVP and imposed sentence. In its Pa.R.A.P. 1925(a)

opinion, the trial court explained

       The Commonwealth’s witness, Herbert Hays, testified that,
       based upon Defendant’s mental abnormality and the
       circumstances of the case, it was his opinion that Defendant was
       likely to engage in future predatory offenses. We found Mr. Hays
       to be a credible witness and accepted his testimony. Upon an
       examination of Defendant’s mental abnormality, the length of
       Defendant’s predatory sexual behavior that occurred repeatedly
       over a number of years, the nature of Defendant’s relationship
       with the victim, and Defendant’s age at the time of expected
       parole, we concurred with Mr. Hay[s’] opinion.

Trial Ct. Op., 7/27/16, at 3.

       Appellant filed no post-sentence motion, but he filed a timely appeal

on April 22, 2016. Appellant raises the following issues:

       1. The Sentencing Court erred in determining that the
       Defendant, Richard Havle, III, was a Sexually Violent Predator
       by failing to take into account 42 Pa.C.S.A. § 9799.12, 42
       Pa.C.S.A. § 9799.24(a)(b).

       2. The Sentencing Court erred in determining by clear and
       convincing evidence that the Defendant meets the criteria of a
       Sexually Violent Predator.

Appellant’s Brief at 3.10

____________________________________________
10
  Appellant does not separate his brief into two sections (one in support of
each issue), in contravention of Pa.R.A.P. 2119(a). His failure to do so has
no effect on our analysis, as the issues he presents overlap. We nevertheless
remind counsel that they are required to comply with our rules of procedure
(Footnote Continued Next Page)

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      Both of Appellant’s issues pose a challenge to the sufficiency of the

evidence supporting the trial court’s SVP determination. 11 Our standard of

review is as follows:

      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[n SVP]. 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. Hollingshead, 111 A.3d 186, 189 (Pa. Super.)

(brackets in original), appeal denied, 125 A.3d 1199 (Pa. 2015).

      In challenging the trial court’s ruling, Appellant does not contest the

conclusion by the Commonwealth’s expert, Mr. Hays, that Appellant is a

hebephiliac and that this condition evidences a mental abnormality or

disorder. See Appellant’s Brief at 6 (citing Hollingshead, 111 A.3d at 194).

Rather, Appellant argues that the court should have separately found that

Appellant is likely to engage in future predatory sexually violent offenses,

and that the evidence presented on that issue was insufficient to permit such
                       _______________________
(Footnote Continued)
and that an appeal is subject to dismissal if there is substantial
noncompliance. Pa.R.A.P. 2101.
11
   Appellant’s brief also casts his argument as a challenge to the weight of
the evidence. That aspect of his argument has been waived by Appellant’s
failure to raise that claim before the trial court. See Pa.R.A.P. 302(a);
Pa.R.Crim.P. 607; Commonwealth v. Schrader, 141 A.3d 558, 566 (Pa.
Super. 2016) (holding challenge to the weight of the evidence regarding an
SVP determination must be presented to the trial court in the first instance).



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a finding. Id. According to Appellant, a hebephiliac condition in itself

provides an insufficient basis upon which to conclude that a person is likely

to engage in future predatory sexually violent behavior, particularly since

hebephilia “is not recognized as a disorder in the DSM-5.” Id. Appellant

contends that the Commonwealth was required to present additional

evidence of a future predatory likelihood, and he points to his own expert’s

assessment of that question using the Static-99R tool, which led the expert

to conclude that the possibility of such future conduct by Appellant is low.

Id. at 6, 9. Appellant also criticizes the failure by Mr. Hays to evaluate the

“Tanner Stages” of the victim when assessing Appellant’s condition. Id. at

6.12

        A defendant does not need to be medically diagnosed with a

psychological or psychiatric disorder to be classified as an SVP. A finding of a

“mental abnormality” in accordance with the statutory definition is sufficient.

See Commonwealth v. Dengler, 890 A.2d 372, 383 (Pa. 2005) (“[t]he

statute does not require proof of a standard of diagnosis that is commonly

found    and/or    accepted      in   a    mental    health    diagnostic    paradigm”).

Furthermore, arguments that an expert’s testimony is unfounded or

erroneous     affect   the   weight,      not   sufficiency,   of   the   evidence.   See

Commonwealth v. Fuentes, 991 A.2d 935, 944 (Pa. Super.), appeal
____________________________________________
12
  The Commonwealth’s expert explained that the “Tanner Stages” describe
the extent to which a pubescent body is developing. N.T. at 47-48. The
expert stated that this could be a tool used to diagnose hebephilia.



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denied, 12 A.3d 370 (Pa. 2010); see also Commonwealth v. Feucht, 955

A.2d 377, 382 (Pa. Super.) (citations omitted), appeal denied, 963 A.2d

467 (Pa. 2008) (“while a defendant is surely entitled to challenge [a report

or opinion by a member of the Board] by contesting its credibility or

reliability before the SVP court, such efforts affect the weight, not the

sufficiency of the Commonwealth’s case”).13 Thus, when “the expert’s report

and testimony support the trial court’s finding that [an appellant] was an

SVP, there is no basis for granting sufficiency relief.” Fuentes, 991 A.2d at

944 (quoting Commonwealth v. Meals, 912 A.2d 213, 223 (Pa. 2006));

see also Hollingshead, 111 A.3d at 194 (holding it would not disturb trial

court’s decision to credit Commonwealth’s expert witness over defense

expert witness on a challenge to the sufficiency of an SVP determination

based on a hebephilia diagnosis).

       Moreover, while the court must examine “the offender's propensity to

re-offend, an opinion about which the Commonwealth's expert is required to

opine . . . , the risk of re-offending is but one factor to be considered when

making      an    assessment;       it    is   not   an   ‘independent   element.’”

____________________________________________
13
  Although Dengler, Feuntes, and Feucht predate the current statutes
governing assessment of a sexually violent predator, the current statutes do
not materially differ from the previous statutes governing this determination.
Accordingly, we may rely on caselaw predating the current statutes to the
extent the versions are not inconsistent. Cf. Commonwealth v. Aikens,
990 A.2d 1181, 1185 n.2 (Pa. Super.) (noting that this Court may rely on
caselaw predating the enactment of the Pennsylvania Rules of Evidence to
the extent the caselaw is consistent), appeal denied, 4 A.3d 157 (Pa.
2010).


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Commonwealth v. Stephens, 74 A.3d 1034, 1038–39 (Pa. Super. 2013);

accord Hollingshead, 111 A.3d at 190 (citation omitted). It is improper for

a court to base its decision solely upon an expert’s projection of recidivism.

See id. (defense expert’s focus on risk of recidivism of hebephiliac was

misplaced).

       Therefore, Appellant’s arguments that Mr. Hays’ testimony was

unfounded or erroneous challenge the weight, not the sufficiency, of the

evidence. Fuentes, 991 A.2d 944. 14 Indeed, regarding the absence of

hebephilia from the DSM-5, we have previously held that “the debate

surrounding hebephilia diagnoses, and their use in SVP proceedings, goes to

the   weight     of   the   expert    witness’     testimony,”   not   its   sufficiency

Hollingshead, 111 A.3d at 193. By the same token, because Appellant has

cited no law making an examination of a victim’s “Tanner Stages” a required

element of an SVP analysis, Appellant’s argument regarding the absence of

such evidence also does not go to sufficiency. Appellant’s own expert


____________________________________________
14
   We note the difference between challenges to the weight of the expert
evidence regarding hebephilia, and an argument that the evidence regarding
hebephilia is inadmissible or subject to a Frye hearing. See Dengler, 890
A.2d at 377-83 (citing Frye v. United States, 293 F. 1013 (D.C. Cir. 1923),
which held that, in order to be admissible, the expert’s testimony must be
based on evidence sufficiently established and accepted in the relevant
scientific community); Hollingshead, 111 A.3d at 193 n.6. While Appellant
did object at the hearing to the admission of Mr. Hays’ testimony regarding
hebephilia, claiming that it is not recognized in the field, see N.T. at 19-21,
Appellant did not ask the court to conduct a Frye hearing and does not
specifically raise an admissibility issue on appeal.



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witness, Dr. Foley, conceded that a Static-99R test also is not required or

necessary to make an SVP determination, see N.T. at 88 — a concession

that clearly is correct in light of the fact that a risk of recidivism is only one

of many factors to be considered by a court in making such a determination.

Hollingshead, 111 A.3d at 194.

      Finally, Appellant claims that Mr. Hays’ testimony was insufficient

because he failed to examine the fourteen factors listed in Section 9799.24

of SORNA. Appellant’s Brief at 6, 8. Mr. Hays is a member of the SORNA

Board that makes an initial assessment of a defendant’s SVP status prior to

the determination by the court, and Section 9799.24(b) lists the following

factors that a Board member is to consider when making that assessment:

      (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.


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           (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(b). Appellant argues that a proper evaluation of the

fourteen factors would lead to a conclusion that he is not an SVP. He notes

that there was a single victim who was 13-15 years old and had no mental

disabilities, there was a family relationship between the parties, there was

no use of physical force by Appellant, and Appellant had no prior offenses.

Id. at 9.15

       In Feucht, we stated the following with regard to the fourteen factors:

            . . . [T]here is no statutory 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
____________________________________________
15
  Appellant characterizes his crime as having fallen in love and having had a
non-violent sexual relationship with a post-pubescent girl. Appellant claims
that he made the complaining witness “feel special” and that “postpubescent
. . . sexual interest in several cultures wouldn’t even be considered
predatorial.” Appellant’s Brief at 6, 9.


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     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.

             Thus, while the Board is to examine all the factors listed
     . . ., the Commonwealth does not have to show that any certain
     factor is present or absent in a particular case. 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.

Feucht, 955 A.2d at 381 (citations omitted). While the presence of certain

factors indicate a mental abnormality, the absence of factors is not

conclusive of the absence of a mental abnormality. Id. In any event, the

record shows that Mr. Hays did examine the fourteen factors before arriving

at his opinion, upon which the court relied, that Appellant should be

designated an SVP. See N.T. at 13-57; Commonwealth’s Ex. 2 at 4-6.

Appellant’s argument based on Section 9799.24(b) therefore is without

merit.

     We hold that there was clear and convincing evidence to establish

Appellant’s SVP determination by the trial court, and Appellant’s arguments

to the contrary regarding the sufficiency of the evidence are unavailing.

Feucht, 955 A.2d at 382.

     Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/2017




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