J-S04004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RAHEEM HAZZARD,

                            Appellant                 No. 1634 EDA 2016


             Appeal from the Judgment of Sentence July 20, 2015
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0001412-2015


BEFORE: SHOGAN and OTT, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                        FILED FEBRUARY 24, 2017

       Appellant, Raheem Hazzard, appeals from the judgment of sentence

entered on July 20, 2015, as made final by the order finding him to be a

sexually violent predator (“SVP”) on April 28, 2016. We affirm.

       The trial court summarized the history of this case as follows:

       FACTUAL HISTORY:

             The instant case involves the Appellant, a 21-year old man
       who has engaged in a sexually abusive course of conduct with a
       child under the age of 13 who is his niece. The minor victim
       reported to police that she had been sexually assaulted by the
       Appellant on two occasions. The first incident occurred when she
       was 11-years-old and at her father’s residence in Philadelphia,
       PA. The victim stated that she was on her side sleeping on a
       mattress in the home when she was awakened by pain
       emanating from her vagina. She stated that her pants and
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     underwear were down and that her uncle, the Appellant, had his
     penis inside of her vagina. She stated that when she could no
     longer tolerate the pain, she stood up and went upstairs to her
     sister’s bedroom.    She was crying and the Appellant came
     upstairs and asked her if she was okay.

           The second incident occurred when the victim was 14-
     years-old during the spring of 2014, when she was visiting her
     father’s new residence in Parkside, Delaware County,
     Pennsylvania. The victim stated she was in the basement of the
     home when the Appellant offered her an alcoholic beverage,
     which she declined. The Appellant then offered her a cigar to
     smoke, which she did. The Appellant asked her to sit down on
     the couch where he proceeded to pull down her pants and
     undergarment. The victim related that the Appellant performed
     oral sex on her vagina. The victim reported that the Appellant
     heard a noise and thought someone was coming so he went
     upstairs to check. The victim pulled up her pants and went
     upstairs. The Appellant said to the victim repeatedly: “Any time
     you want me to do it just tell me.”

     PROCEDURAL HISTORY:

           On April 17, 2015, Jeffrey Bauer, Esquire, Assistant Public
     Defender, entered his appearance on behalf of the Appellant. On
     July 20, 2015, the Appellant entered a negotiated guilty plea to
     Involuntary Deviate Sexual Intercourse with a Child, and was
     sentenced according to the recommended sentence offered by
     the Commonwealth of: 6 to 12 years SCI and 5 years
     consecutive state probation.

            On January 19, 2016, an SVP Hearing was held. On
     January 19, 2016, the Appellant filed a “Motion for
     Reconsideration of Sentencing”. On January 25, 2016, the Court
     issued an Order denying the Motion for Reconsideration. On
     April 28, 2016, the court filed an Order and Findings determining
     that Appellant is determined to be a Sexually Violent Predator
     under 42 Pa.C.S. Section 9799.24. On May 26, 2016, the
     Appellant filed a timely Notice of Appeal.

                                  ***

     The Sexually Violent Predator Hearing:


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           After Appellant’s conviction, this Court, pursuant to the
     provisions of 42 Pa.C.S. § 9799.24, ordered Appellant be
     assessed by the Pennsylvania Sexual Offenders Assessment
     Board (SOAB) to determine if Appellant met the criteria set forth
     in the law for a Sexually Violent Predator. Upon receipt of the
     Order from the Court, the Board designated Board member
     Melanie Cerone, Ph.D., a licensed psychologist, to make the
     assessment of Appellant to determine whether he is a Sexually
     Violent Predator.

            Dr. Cerone completed a written report and her findings
     were submitted to the Court. In her report, she outlined the
     facts she considered relevant to each factor, as more fully set
     forth in her written report. After review of the Board’s report, a
     Hearing was held on January 19, 2016, to assist the Court in
     making an accurate determination as to whether Appellant
     should be deemed a Sexually Violent Predator. Dr. Cerone’s
     Report was admitted into evidence without objection as
     Commonwealth’s Exhibit, C-1 at the SVP Hearing. (N.T. 1/19/16
     p.24). This was uncontroverted evidence, as the Appellant
     did not produce any witnesses at the SVP Hearing.

           In preparation for her report, Dr. Cerone interviewed the
     Appellant on October 2, 2015. Dr. Cerone completed a report
     and submitted findings to this Court. See Commonwealth’s
     Exhibit, C-1. Dr. Cerone reviewed inter alia: the S.O.A.B. (sexual
     offenders assessment board) investigator’s report, court order,
     defense response, investigator’s report, police criminal
     complaint, affidavit of probable cause, police incident report,
     victim’s medical/treatment reports, transcript of proceedings-
     3/4/15, juvenile probation records, psychiatric and psychological
     evaluations from August of 2013, substance abuse evaluation
     from 2013, and a letter from the Appellant to the Judge.

           Dr. Cerone’s report included the following:

           1. The Appellant has demonstrated significant
           antisocial behavior as a juvenile and adult. He has a
           criminal history of multiple arrests and convictions
           for a variety of criminal offenses. The Doctor noted
           that the victim of both of the Appellant’s adult
           assault cases was his mother. In the case of the
           arrest on 6/9/12, the police report indicated
           [Appellant] was found naked, on top of his mother,

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          and with his hands around her neck.            When
          questioned about this incident, Appellant recalled
          that he was getting into the shower when his mother
          began bothering him to give her money. He stated
          that when he refused, she broke into the bathroom
          and began hitting him. He stated he did not have
          time to put clothes on before restraining her in an
          effort to protect himself.     The totality indicates
          antisocial behavior. Further, the multiple criminal
          offenses go toward a mental abnormality. Appellant
          meets the criteria for a DM-5 diagnosis of Antisocial
          Personality Disorder.

          2. Dr. Cerone concluded that the Appellant’s acts
          were predatory. In the instant offense, the Appellant
          sexually assaulted his 11-year-old niece while she
          was sleeping. He sexually assaulted her on a second
          occasion three years later.        The Appellant has
          repeatedly victimized this young child, and has used
          his position as a trusted family member to do so, it is
          indicative of predatory behavior. Dr. Cerone opined
          that the Appellant has established a pattern of
          predatory offending and his behavior meets the
          statutory definition of predatory behavior.

          3. Dr. Cerone opined that the Appellant suffers from
          two mental abnormalities, deviant sexual interest
          and antisocial personality disorder. The Appellant is
          a 21-year old man who has engaged in a sexually
          abusive course of conduct with a child under the age
          of 13. The Appellant’s case involves two separate
          acts of sexual abuse upon his niece, one occurring
          when his niece was approximately age 11, the other
          occurring at approximately age 14.       Dr. Cerone
          concludes that the Appellant’s sexual interest in a
          child of such an age is indicative of deviant sexual
          interest.

          4. As to Antisocial Personality Disorder, Dr. Cerone
          reported that the Appellant suffers from Antisocial
          Personality Disorder as described within the DSM-5.
          The Appellant has demonstrated significant antisocial
          behavior as an adult.     Dr. Cerone reviewed the
          Appellant’s   lengthy   history   of   arrests   and

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          adjudications/convictions as both a juvenile and
          adult. Dr. Cerone concludes that it is indicative of
          antisocial personality disorder because the Appellant
          continues to engage in unlawful behavior, knowing
          the risks to his freedom, and in spite of the
          opportunities he has had to engage in rehabilitative
          measures. The Appellant advised Dr. Cerone that he
          was diagnosed with Schizophrenia when he was 17
          or 18 years of age. The Appellant self–reported
          during his interview with Dr. Cerone, that he was
          suspended from high school “over 80 times” and was
          ultimately expelled at age 16 for beating another
          male student to a “bloody pulp”.          Dr. Cerone
          concluded that the Appellant has a “history of
          irritability and aggression”. Dr. Cerone found the
          Appellant to be remorseless and completely without
          understanding or empathy in regard to how his
          actions have affected his victims.

          5. Dr. Cerone’s report, Commonwealth’s Exhibit, C-1,
          evidenced her determination that Appellant is a
          Sexually Violent Predator after taking into account
          such factors that are outlined in 42 Pa.C.S. §
          9799.24. Dr. Cerone determined that the Appellant
          met the statutory definition of a Sexually Violent
          Predator. Dr. Cerone concluded: “it is this Board
          Member’s professional opinion within a reasonable
          degree of professional certainty that Mr. Hazzard
          (Appellant) meets the criteria to be classified as a
          Sexually Violent Predator under the Act.[”] (C-1
          p.10).

          6. After the Hearing, this Court, based on all the
          evidence submitted at the Hearing, the Board’s
          assessment, and this Court’s independent review,
          concluded that Appellant met the criteria and shall
          be classified as a Sexually Violent Predator. The
          Commonwealth has proven by clear and convincing
          evidence that Appellant is a Sexually Violent
          Predator. 42 Pa.C.S. Section 9799.24.

          7. The Commonwealth proved by clear and
          convincing evidence that Appellant suffers from a
          mental abnormality or personality disorder that

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          makes Appellant likely to engage in predatory
          sexually violent offenses. The evidence confirms
          proof of a mental defect or personal disorder, which
          is an indication of Appellant’s further dangerousness.

          8. The credible testimony confirmed the following:

                a. Records indicate that the Appellant’s instant
                offense involved one female child victim.

                b. The Appellant did not exceed the means
                necessary to achieve the offense.

                c. In the first offense, the victim awoke to the
                Appellant having a vaginal intercourse with
                her. On the second occasion, the Appellant
                performed cunnilingus on the victim after
                offering her alcohol and a cigar.

                d. The Appellant is the victim’s paternal uncle.

                e. The Appellant is a 21-year old man who has
                engaged in a sexually abusive course of
                conduct with a child under the age of 13. The
                victim of the instant offense was 11 years of
                age at the time of the first offense and 14
                years of age at the time of the second offense.
                Having prepubescent victims is consistent with
                deviant sexual interest for sexual offenders.
                This is indicative of predatory behavior.

                f. The Appellant has a prior criminal history as
                a juvenile and adult. The Appellant’s criminal
                history is reflective of his antisocial nature.

                g. Records indicate that the Appellant has a
                history of substance and alcohol abuse.

                h. Dr. Cerone reported that the Appellant
                meets DSM-5 diagnostic criteria for antisocial
                personality disorder.    The Appellant has
                demonstrated no remorse for his behavior. He
                has projected blame onto his victim and
                demonstrated a lack of empathy towards her.

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               i. The Appellant has a history of depression
               and substance abuse.

               j. It is Dr. Cerone’s clinical opinion that the
               Appellant has followed both sexually deviant
               and antisocial pathways to sexual offending.

               k. It is Dr. Cerone’s professional opinion within
               a reasonable degree of professional certainty
               that the Appellant suffers from a Mental
               Abnormality or Personality Disorder as defined
               in the Act.

               l. In addition, it is Dr. Cerone’s opinion, to a
               reasonable degree of professional certainty,
               that the Appellant currently meets the criteria
               set forth in the law for Sexually Violent
               Predator.

          9. Although the Appellant did not meet every one of
          the factors, Dr. Cerone opined:

               [t]he Act requires the Board to consider 14
               factors during the course of the assessment...
               the factors are not to be used for risk
               assessment, the factors cannot be balanced
               against each other, and SVP status may be
               based upon the presence of factors, while the
               absence of factors is not conclusive.

          Dr. Cerone’s Report, C-1, p.7.

          10. The Court found Dr. Cerone’s Report to be
          credible. Dr. Cerone’s conclusion was clear, direct,
          weighty and convincing and demonstrated that
          Appellant suffers from a mental abnormality and
          mental disorder or personality disorder that makes
          him likely to engage in predatory sexual violent
          offenses.

          11. After the Hearing, the Court, based on all the
          evidence submitted at the Hearing, the Board’s
          assessment, and the Court’s independent review,

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            concluded that Appellant met the criteria and shall
            be classified as a Sexually Violent Predator. The
            Commonwealth established by clear and convincing
            evidence that Appellant is a Sexually Violent
            Predator, 42 Pa.C.S. §9799.24.

Trial Court Opinion, 8/19/16, at 1-6 (emphasis in original). Both Appellant

and the trial court have complied with Pa.R.A.P. 1925.

      Appellant presents the following issue for our review:

            Whether the evidence is insufficient to sustain the sexually
      violent predator designation since the Commonwealth failed to
      prove, by clear and convincing evidence, that Appellant acted
      due to a mental abnormality or personality disorder that makes
      him likely to reoffend or engage in predatory sexually violent
      offenses?

Appellant’s Brief at 11 (italics removed).

      In his sole issue, Appellant challenges his classification as an SVP.

Appellant’s Brief at 17-22.   Appellant alleges that there was evidence that

supported a determination that he did not meet the SVP criteria because it

was not established that he suffers from a mental abnormality or personality

disorder.    Id. at 18-20.      In addition, Appellant contends that the

Commonwealth failed to establish that there is a likelihood that he would

reoffend. Id. at 20-22. Appellant concludes the trial court erred in ruling

the Commonwealth demonstrated by clear and convincing evidence that he

is an SVP. Id. at 22.

      An SVP is defined as:

      an individual convicted of [a sexually violent offense as set forth
      in 42 Pa.C.S. section 9799.14 (relating to sexual offenses and
      tier system) and who], is determined to be a sexually violent

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      predator under [42 Pa.C.S.] section 9799.24 (relating to
      assessments) due to a mental abnormality or personality
      disorder that makes a person likely to engage in predatory
      sexually violent offenses.

42 Pa.C.S. § 9799.12. A “mental abnormality” is “[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” conduct is “an act

directed at a stranger or at a person with whom a relationship has been

instituted, established, maintained, or promoted, in whole or in part, in order

to facilitate or support victimization.” Id. The “salient inquiry for the trial

court is the identification of the impetus behind the commission of the crime,

coupled with the extent to which the offender is likely to reoffend.”

Commonwealth v. Dixon, 907 A.2d 533, 536 (Pa. Super. 2006).

However, the risk of reoffending is but one factor to be considered when

making    an    assessment;    it   is   not   an   “independent     element.”

Commonwealth v. Morgan, 16 A.3d 1165, 1170–1172 (Pa. Super. 2011)

(citations omitted).

      When the defendant is convicted of an offense listed in 42 Pa.C.S. §

9799.14, the trial court orders the Sexual Offender Assessment Board to

evaluate whether to recommend classifying the defendant as an SVP.

Commonwealth v. Hollingshead, 111 A.3d 186, 189 (Pa. Super. 2015).

The evaluator whom the Board selects to perform the assessment must

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weigh the following fifteen factors: whether the instant offense involved

multiple victims; whether the defendant exceeded the means necessary to

achieve the offense; the nature of the sexual contact with the victim; the

defendant’s relationship with the victim; the victim’s age; whether the

instant offense included a display of unusual cruelty by the defendant during

the commission of the offense; the victim’s mental capacity; the defendant’s

prior criminal record; whether the defendant completed any prior sentences;

whether the defendant participated in available programs for sexual

offenders; the defendant’s age; the defendant’s use of illegal drugs; whether

the defendant suffers from a mental illness, mental disability, or mental

abnormality; behavioral characteristics that contribute to the defendant’s

conduct; and any other factor reasonably related to the defendant’s risk of

reoffending.    See 42 Pa.C.S. § 9799.24(b) (setting forth assessment

factors).   It is not necessary for all factors, or any particular number of

them, to be present to support an SVP designation.      Commonwealth v.

Feucht, 955 A.2d 377, 381 (Pa. Super. 2008).

      The Board must submit its written assessment to the district attorney,

42 Pa.C.S. § 9799.24(c), who then files a praecipe to schedule an SVP

hearing. 42 Pa.C.S. § 9799.24(e)(1). The Commonwealth has the burden

at the hearing of proving by clear and convincing evidence that the

defendant is an SVP.     42 Pa.C.S. § 9799.24(e)(3).    The Commonwealth

meets its burden by submitting evidence that is “so clear, direct, weighty,


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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. Meals, 912 A.2d 213, 219 (Pa. 2006).

      Our standard and scope of review is well-settled:

      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.

Hollingshead, 111 A.3d at 189.

      In addressing Appellant’s issue, the trial court opined as follows:

            The issue raised by the Appellant for review presents a
      challenge to this Court’s order finding him a Sexually Violent
      Predator. On January 19, 2016, a Hearing was held stemming
      from a praecipe filed by the Assistant District Attorney for the
      Commonwealth, which was based upon the evaluation of Dr.
      Melanie Cerone, Ph.D., member of the Pennsylvania Sexual
      Offenders Assessment Board. The Court issued an order based
      upon the Sexual Offenders Assessment Board’s determination
      and the Hearing in which Dr. Cerone’s report was admitted
      without objection as Commonwealth’s Exhibit, C-1.          (N.T.
      1/19/16 p.24). The Court determined that Appellant had met
      the criteria established in 42 Pa.C.S.§ 9799.24.             The
      Commonwealth established by clear and convincing evidence
      that the Appellant suffers from a mental abnormality/personality
      disorder that makes him likely to engage in predatory sexual
      offenses.

             Dr. Cerone recorded that Appellant met the statutory
      definition of an SVP, because: (1) he has been convicted of a
      sexually violent offense, as set forth in SORNA Section 42
      Pa.C.S. § 9799.14(b); and (2) he suffers from a personality
      disorder, namely Anti-Social Personality Disorder, that makes

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     him likely to engage in predatory sexually violent offenses within
     the meaning of SORNA, 42 Pa.C.S. § 9799.12. (C-1 p.10).

            As to the first prong, Appellant has been convicted of a
     sexually violent offense. Sexual assaults on children are, by
     definition, “sexually violent.” The term sexually violent predator
     is a legal term which basically subsumes the idea that a sexual
     violation is always violent. Commonwealth v. Prendes, 2014 Pa.
     Super. 151, 97 A.3d 337, 348, appeal denied, 105 A.3d 736 (Pa,
     2014).

           As to the second prong, Dr. Cerone concluded that
     Appellant suffers from Anti-Social Personality Disorder. She
     opined    that   there    are    four  criteria   for   Mental
     Abnormality/Personality Disorder and applied them to the case
     sub judice:

           (1) The individual has a congenital or acquired “condition”
           which is the impetus to the sexual offending;
           She found that the Appellant suffers from Anti-Social
           Personality Disorder, which is the impetus to the sexual
           offending.    This is considered to be a congenital or
           acquired condition.

           (2) The individual suffers from a lifetime “condition”;
           Personality disorders are chronic, lifetime conditions.

           (3)    The    “condition”     over-rode    the   individual’s
           emotional/volitional control;
           Dr. Cerone determined that Appellant has a history of
           criminal offending. Despite his past experiences of being
           arrested, sanctioned and treated, his criminal behavior has
           persisted over time.      This is sufficient evidence of a
           condition that over-rode his emotional/volitional control.

           (4) Likelihood of re-offending.
           There are two pathways to lifetime sexual offending-
           chronic antisociality and sexual deviancy. She opined that
           Appellant's behavior is consistent with an antisocial
           pathway.     This has been shown to be a significant
           predictor of sexual offense recidivism.

     (C-1 p.10). It is Dr. Cerone’s professional opinion within a
     reasonable degree of professional certainty that Appellant suffers

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      from a Mental Abnormality or Personality Disorder as defined in
      the Act.

            In the instant offense, Appellant first sexually assaulted his
      11-year-old niece while she was sleeping. He sexually assaulted
      the victim on a second occasion three years later. Dr. Cerone
      found that Appellant has established a predatory pattern of
      offending and his behavior meets the statutory definition of
      predatory behavior.

             It was Dr. Cerone’s opinion, to a reasonable degree of
      professional certainty, that the Appellant currently meets the
      criteria set forth in the law to be classified as a Sexually Violent
      Predator.

             Therefore, the Court found that the Appellant was a
      Sexually Violent Predator under 42 Pa.C.S. §9799.24(e)(4). On
      April 28, 2016, the court filed an Order and Findings determining
      that Appellant was determined to be a Sexually Violent Predator
      under 42 Pa.C.S. Section 9799.24. . . .

Trial Court Opinion, 8/19/16, at 7-9.

      Our review of the record reflects that at Appellant’s SVP hearing the

Commonwealth presented the ten-page expert report of Dr. Melanie Cerone,

who opined that Appellant is an SVP based upon various section 9799.24

factors.   N.T., 1/19/16, at 5-7, 24.         We have carefully reviewed the

evidence, including the transcript from the SVP hearing, Dr. Cerone’s report,

the trial court’s SVP order, and the thorough opinion drafted by the trial

court. We agree with the trial court that the Commonwealth provided clear

and convincing evidence that Appellant is an SVP.       Therefore, Appellant’s

claim to the contrary fails.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2017




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