J-S44028-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                             Appellee

                        v.

ALBERT LEE HESLEY

                             Appellant                      No. 116 WDA 2014


           Appeal from the Judgment of Sentence February 26, 2010
               In the Court of Common Pleas of Bedford County
             Criminal Division at No(s): CP-05-CR-0000451-2008


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.:                                FILED AUGUST 22, 2014

       Albert Lee Hesley appeals from the judgment of sentence 1 entered on

February 26, 2010, in the Court of Common Pleas of Bedford County, made

final by the denial of his post-sentence motion on April 10, 2010. We affirm.

       The underlying facts of this case are not in dispute. On October 28,

2009, Hesley pled nolo contendere to one count of rape of a child, following

                                                                                   s

prepubescent son for nearly two years. At a hearing on February 19, 2010,

Herbert    E.   Hays,    a   member      of    the   Pennsylvania   Sexual Offenders

Assessment Board testified that Hesley was a sexually violent predator
____________________________________________


1
  The caption has been amended to reflect that the appeal is from the
judgment of sentence entered on February 26, 2010, by virtue of the trial
                                                               nunc pro
tunc.
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                                                  tenced Hesley to 8 to 16



      Following the imposition of sentence, Hesley filed a motion for

reconsideration asking the court to reverse the SVP designation. The court

denied the motion on April 14, 2010. Hesley did not file a direct appeal.

      On September 4, 2010, Hesley filed a pro se PCRA petition

challenging, among other things, his SVP status. Hesley filed an amended

PCRA petition with the assistance of court appointed counsel on March 8,

                                                     second amended PCRA



2012. On June 12, 2013, this Court vacated the order denying PCRA relief



right to appeal his judgment of sentence nunc pro tunc. Commonwealth v.

Hesley, No. 1919 WDA 2012, unpublished memorandum at 1-2 (Pa. Super.

filed June 12, 2013).

      Hesley filed his notice of appeal nunc pro tunc on December 13, 2013.

On appeal, Hesley challenges the sufficiency of the evidence supporting the




                            de novo

Commonwealth v. Bishop, 936 A.2d 1136, 1141 (Pa. Super. 2007)

(citations omitted). In reviewing such a claim, we consider the evidence in




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the light most favorable to the Commonwealth, which prevailed upon the

issue at trial. Id.

      An SVP is defined as:

      A person who has been convicted of a sexually violent offense
      set forth in Section 9795.1 (relating to registration) and who is
      determined to be a sexually violent predator under 9795.4
      (relating to assessments) due to a mental abnormality or
      personality disorder that makes the person likely to engage in
      predatory sexually violent offenses. In order to show that the
      offender suffers from a mental abnormality or personality
      disorder, the evidence must show that the defendant suffers
      from a congenital or acquired condition . . . 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. Moreover, there must be a showing

      is defined as 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. Furthermore, in reaching a
      determination, we must examine the driving force behind the

      propensity      to   re-offend,   an    opinion   about   which   the

      of re-offending is but one factor to be considered when making


      At the SVP hearing, the Commonwealth has the burden of
      proving by clear and convincing evidence that the person meets
      the criteria to be designated as an SVP. This burden of proof
      has been described as an intermediate test, falling below the
      highest level of proof, beyond a reasonable doubt, but above the
      preponderance of the evidence standard. Evidence will meet this
      level of proof if it is so clear, direct, weighty, and convincing as
      to enable the [trier of fact] to come to a clear conviction, without
      hesitancy, of the truth of the precise facts at issue.

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

(citations and quotations omitted).

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witness, Hays, as an expert in the field of assessment, treatment, and

management of sexual offenders.                In preparation of his report, Hays

reviewed the following information:             affidavit of probable cause; police

reports, including statements given by Hesley; interview of the victim;

information from the Mifflin County case,2 including a custodial statement

made by Hesley; and an interview of Hesley conducted by Hays. Based on

his review of the matter, Hays determined that:

          1. There was only one victim in the case, a child who would
             have been between the ages of nine and 10 at the time of
             his victimization. [Hesley] was between the ages of 38
             and 39;

          2. [Hesley] did not exceed              the   means   necessary   to
             accomplish the offense;

          3. [Hesley] met the child through his involvement with the


          4. [Hesley] engaged the child in oral and anal intercourse,
             masturbation, and fondling;

          5. [Hesley] has no prior record, the offenses did not involve
             sadistic behavior or unusual cruelty;

          6. The child had no mental infirmities;

____________________________________________


2
    Hesley lived in Mifflin County from March 31, 2007 to August, 2008 with

this time. Accordingly, charges were brought against Hesley in Mifflin
County for child sexual assault. Hesley also pled nolo contendere to one
count of rape of a child in that case.



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          7. There was no evidence of drug use by [Hesley] or that he
             suffered from mental disabilities;

          8. In his interview with Hays, [Hesley] would at times admit
             he had offended the child, and at times denied it;

          9. [Hesley] had to have initiated the conduct with the child,
             trained and groomed the child in these behaviors as in

              inclination naturally to perform these acts;

          10. The offenses occurred over a two year time period;

          11. As during this time, [Hesley] maintained his relationship
                                                                age in


          12. Hays found [Hesley] suffered from a mental abnormality,
             pedophilia;

          13. Based on this conduct in grooming and training the child
             and his efforts to avoid discovery, [Hays] stated that as
             [Hesley] initiated, continued, and maintained the
             exploitation [Hesley] was a predator.

Trial Court Opinion, 11/5/12, at 2-4.



SVP designation is twofold. First, Hesley claims that Hays failed to address

his likelihood to reoffend. We reiterate that the risk of reoffending is but one

factor the court should consider when making an assessment; it is not an

                              Commonwealth v. Morgan, 16 A.3d 1165, 1170-

72 (Pa. Super. 2011) (citations omitted). Additionally, Hays clearly states in

                                                 -IV-TR[3] criteria for Pedophilia, a
____________________________________________


3
 The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition,
Text Revision, published by the American Psychiatric Association, is a
manual used to make psychiatric diagnoses.



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J-S44028-14



mental abnormality that makes him likely to reoffend.         Pedophilia has no



claim is meritless.

      Hesley also argues that the trial court erred in concluding his behavior



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




relationship with



moment Hesley engaged in sexual conduct with the child, he abrogated his

custodial role.   For nearly two years, Hesley promoted and maintained a

sexual relationship with the victim; one he would have had to work at to

maintain, considering its secretive nature.       While Hesley may not have

initiated his relationship with the victim to facilitate or support victimization,

he certainly promoted and maintained it for that reason.

      When viewed in the light most favorable to the Commonwealth, the



provide clear and convincing evidence that Hesley suffers from a mental

abnormality that makes him likely to engage in predatory, sexually violent

offenses. Stephens, supra. Therefore, the evidence was sufficient for the




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J-S44028-14




merit and we cannot offer him relief.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/2014




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