J-S78025-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

DAVID RICHARD HAMMAKER

                            Appellant               No. 849 MDA 2014


                  Appeal from the Order Entered May 1, 2014
                 In the Court of Common Pleas of Perry County
              Criminal Division at No(s): CP-50-CR-0000258-2013


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                       FILED JANUARY 27, 2015

       Appellant David Richard Hammaker appeals from the order issued by

the Perry County Court of Common Pleas finding Appellant was a sexually

violent predator (“SVP”) within the meaning of the Sex Offender Registration

and Notification Act (“SORNA”), 42 Pa.C.S. §§ 9799.11, et seq.1 We affirm.

       Appellant was charged with multiple offenses arising from the sexual

assault of his son. On January 9, 2014, he entered a nolo contendere plea


____________________________________________


1
  SORNA is also known as Megan’s Law. The trial court and parties cite 42
Pa.C.S. § 9791, et seq., a prior version of SORNA. Our legislature, however,
amended SORNA, effective December 20, 2012, and repealed the prior
statutory provisions. This memorandum cites to the current version, which
was in effect at the time of the May 1, 2014 SVP hearing and sentencing.
The SVP provisions at issue in this decision did not substantially change from
the prior version.
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to one count of indecent assault.2 The Sexual Offenders Assessment Board

(“SOAB”) conducted an assessment of Appellant and issued a report

recommending that the trial court find Appellant to be an SVP.

        On May 1, 2014, the trial court held an SVP hearing and a sentencing

hearing. The court found Appellant was an SVP and sentenced him to 20 to

84 months’ incarceration.         The court also found Appellant was subject to

SORNA’s lifetime registration requirement.

        On May 7, 2014, Appellant filed a timely notice of appeal.         Both

Appellant and the trial court complied with Pennsylvania Rule of Appellate

Procedure 1925.

        Appellant raises the following issue on appeal:

           Whether the trial court’s conclusion that Appellant is [an
           SVP] under Megan’s Law is supported by sufficient
           evidence.

Appellant’s Brief, at 3.

        If a defendant is convicted of a sexually violent offense, a trial court

must order the SOAB to assess the defendant to determine whether to

classify him as an SVP.         42 Pa.C.S. § 9799.24(a)-(b).3   The SOAB then

prepares a report and submits it to the Commonwealth.             42 Pa.C.S. §
____________________________________________


2
    18 Pa.C.S. § 3126(a)(7).
3
  The trial court and parties cite 42 Pa.C.S. § 9795.4 as the provision
governing assessments. Effective December 20, 2012, however, § 9799.24
addresses SVP assessments. Section 9795.4 was repealed.




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9799.24(b), (d); accord Commonwealth v. Feucht, 955 A.2d 377, 380

(Pa.Super.2008).       Upon praecipe from the Commonwealth, the court will

conduct a hearing.           42 Pa.C.S. § 9799.24(e).        At the hearing, the

Commonwealth must prove the defendant is an SVP by clear and convincing

evidence. 42 Pa.C.S. § 9799.24(e)(3); accord, Feucht, 955 A.2d at 380.

       An SVP is an individual convicted of an enumerated offense “who . . .

is   determined   to    be    [an   SVP]   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.”

42 Pa.C.S. § 9799.12.          Indecent assault is an enumerated offense.          42

Pa.C.S. § 9799.12; 9799.14(d)(8).

       SORNA discusses the factors the SOAB must consider in preparing an

SVP assessment and provides:

         An assessment shall include, but not be limited to, an
         examination of the following:

         (1) Facts of the current offense, including:

            (i) Whether the offense involved multiple victims.

            (ii) Whether the individual exceeded              the   means
            necessary to achieve the offense.

            (iii) The nature of the sexual contact with the victim.

            (iv) Relationship of the individual to the victim.

            (v) Age of the victim.

            (vi) Whether the offense included a display of unusual
            cruelty by the individual during the commission of the
            crime.

            (vii) The mental capacity of the victim.

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        (2) Prior offense history, including:

           (i) The individual’s prior criminal record.

           (ii) Whether     the   individual    completed   any   prior
           sentences.

           (iii) Whether the individual participated in available
           programs for sexual offenders.

        (3) Characteristics of the individual, including:

           (i) Age.

           (ii) Use of illegal drugs.

           (iii) Any mental illness, mental disability or mental
           abnormality.

           (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). The statute defines a mental abnormality 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.

42 Pa.C.S. § 9799.12.

     There is no requirement that all factors “or any particular number of

them be present or absent in order to support an SVP designation.” Feucht,

955 A.2d at 381. “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



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presence     or   absence   of   one   or   more   particular   types   of   mental

abnormalities.” Id. (internal citations omitted). The court must determine

whether the Commonwealth established 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.

      On May 1, 2014, the court held an SVP hearing. At the SVP hearing,

Dr. Robert Stein, a licensed psychologist and a member of the SOAB,

testified. N.T., 5/1/2014, at 3. Dr. Stein stated Appellant chose not to be

evaluated.    He based his report on a review of the file, which included a

report by the board investigator, an order from the court, a response from

defense counsel, the criminal information and affidavit of probable cause,

investigative reports, Children and Youth Services reports from this case and

from an unfounded prior case, ChildLine reports, reports from the Dauphin

County District Attorney’s Office on two prior cases, adult probation records,

child support information, and a pre-sentence investigation. Id. at 6-7.

      Dr. Stein discussed each of the fifteen factors the SOAB must consider

when preparing a report pursuant to 42 Pa.C.S. § 9799.24(b). He noted the

offense involved only one victim and Appellant did not exceed the means

necessary to achieve the offense. N.T., 5/1/2014, at 8. Dr. Stein found the

nature of the sexual contact particularly relevant, noting that because the

acts included “oral sex with a young boy, it would be consistent with a

pedophilic disorder, a disorder that involves sexual interest and acts with a

young child.” Id. Dr. Stein noted the victim was Appellant’s biological son,

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which was consistent with sexual deviance, and noted the victim’s age, 7,

was consistent with pedophilic disorder.      Id.   Dr. Stein found there was

unusual cruelty because Appellant forced the victim to consume semen, and

the victim became sick.     Id.   Dr. Stein also noted the victim suffers from

“some psychiatric conditions, at least some of which are possibly due to the

abuse.” Id.

      Dr. Stein then noted that Appellant’s prior offense history included a

sex offense, which was consistent with a sustained period of sexual

deviance, and noted there was a history of probation revocation.              N.T.,

5/1/2014, at 9.    Dr. Stein did not have information suggesting Appellant

received   sex   offender   counseling.     Dr.   Stein   noted   Appellant    was

approximately 48 years old when the acts started, which was consistent with

a sexual deviance disorder. Id.

      Dr. Stein stated that Appellant did not use illegal drugs, his behavioral

history was consistent with a disorder of sexual deviance, i.e., a pedophilic

disorder, and Appellant had a possible alcohol abuse problem.                 N.T.,

5/1/2014, at 9. Dr. Stein then stated that “having a prior sexual criminal

history and having a male victim are all associated statistically with

increased risk.” Id.

      Dr. Stein also discussed his findings.        He first discussed whether

Appellant suffered from a condition that was the impetus of the sexual

offense. N.T., 5/1/2014, at 10. Dr. Stein found Appellant had a pedophilic

disorder, and stated that “a disorder of this kind of sexual deviance is not a

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curable condition, there were repeated sexual urges for this young boy that

[Appellant] either would not or could not control; given this history, there is

sufficient evidence that if given unsupervised access to children at some

point in his life, there would be some form of sexual misconduct.”          N.T.,

5/1/2014, 11-12. He noted there were “acts of oral sex to ejaculation with a

young child.   Even a single such act would make one strongly suspect a

pedophilic disorder, that is sustained sexual interest in a young child.” Id.

He noted the victim was unable to specify a time frame,

         but he detailed multiple counts of getting sick from semen
         in his mouth. He talked about statements that were made
         to him that were grooming statements, statements having
         to do with drinking juice, meaning semen. While he stated
         acts occurred a thousand times, it’s understood that this
         was a young boy saying this and that it was an
         exaggeration, but it is indicative of numerous occurrences
         even though we do not have an exact number.

Id., at 10-11. Dr. Stein stated there was a past report involving an eight-

year old girl, which did not result in a conviction, and a prior criminal

conviction for sexual assault against Appellant’s thirteen-year-old niece.

Id., at 11. He noted there were other allegations of sexual misconduct that

the report did not rely upon but would be of concern in a clinical context.

N.T., 5/1/2014, at 11.      Dr. Stein concluded to a reasonable degree of

medical certainty that pedophilic disorder was the impetus to the sexual

offending. Id., at 11-12.

      Dr. Stein next opined as to whether the acts were predatory, which is

“an act that is either directed at a stranger, or if it is a familiar person, if a

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relationship has been promoted for victimization.”        N.T., 5/1/2014, at 12.

Dr. Stein found Appellant groomed4 the victim with verbal statements,

including attempts to convince the victim that semen was “juice.” Id. at 12-

13.    Dr. Stein noted repeated molestation “in this manner promotes a

sexually victimizing relationship consistent with predatory behavior as the

statute defines it.” Id. at 13. Dr. Stein concluded that Appellant should be

classified as an SVP. N.T., 5/1/2014, at 13.

       Appellant’s counsel cross-examined Dr. Stein.       Dr. Stein stated that

there was a “slight decrease” in the likelihood of recidivism as individuals

age.   N.T., 5/1/2014, 14-15.         Dr. Stein agreed that, although there were

other allegations of sexual abuse, Appellant had only one other sexual

offense conviction, which involved a thirteen-year-old female. Id., at 16-18.

Further, Dr. Stein testified that, pursuant to the Diagnostic and Statistical

Manual of Mental Disorders, 5th ed. (“DSM-V”), a diagnosis of pedophilic

disorder requires six months or more of fantasies, urges, or behaviors

involving a prepubescent child. Id. at 19. He testified, however, that “the

time period acknowledged by the DSM-V is arbitrary and it is subject to the

judgment of the individual reviewing the case.” Id., at 21. He opined that:

          [B]ased on the seriousness of the act, the seriousness of
          the grooming behavior, that there was some period of time
____________________________________________


4
  Dr. Stein defined grooming as “anything that is done to a child to make it
easier to break down that child’s defenses for molestation.” N.T., 5/1/2014,
at 12.



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          over which such deviant sexual interest would have
          developed. We don’t know the exact period of time.
          There [was] more . . . than one act in this case. The
          child’s account suggests many acts, although I can’t put a
          number on it. It is my clinical judgment that there has
          been a lengthy period of time over which such deviant
          sexual interest has been harbored by the Defendant, I
          can’t put an exact figure on the number of weeks or
          months or years that he has had this interest.

Id. at 22.

       The Commonwealth submitted Dr. Stein’s report into evidence. N.T.,

5/1/2014, at 27.5

       The court entered the following findings on the record:

          On January 9, 2014, following [Appellant’s] nolo plea to
          the offense of indecent assault, this [c]ourt requested the
          [SOAB] to conduct an evaluation and assessment of
          [Appellant]. . . .

          On May 1, 2014, this [c]ourt conducted a hearing per the
          Commonwealth’s praecipe.       At the hearing, Robert M.
          Stein, Ph.D., from the [SOAB], offered an opinion that
          [Appellant] should be certified as [an SVP]. This [c]ourt
          accepts that testimony as credible. The [c]ourt finds the
          Commonwealth has met its burden of proof by clear and
          convincing evidence that [Appellant] is [an SVP];
          wherefore, the [c]ourt enters the following order: . . . and
          now, May 1, 2014, the [c]ourt finds on clear and
          convincing evidence that [Appellant] is [an SVP] within the
          meaning of 42 Pa.C.S.A §§ [9799.12], et seq.

          As to the Megan’s Law registration, the [c]ourt is entering
          the following findings of fact: number one, [Appellant] has
          been convicted of indecent assault, a sexually violent
          offense as defined in 42 Pa.C.S.A. § [9799.12]; number
____________________________________________


5
  Although admitted into evidence, the report is not contained in the original
record.



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          two, the number of victims is one; number three,
          [Appellant] did not exceed the means necessary to achieve
          the offense; number four, the nature of the sexual conduct
          with the victim was oral sex; number five, the relationship
          of [Appellant] to the victim was that of biological father;
          number six, the age of the victim was between six and
          seven at the time of the offense; number seven, the
          offense did include a display of unusual cruelty by the
          individual during the commission of the crime; number
          eight, the mental capacity of [the victim],6 [the victim’s]
          mental capacity has been impacted by the acts performed
          upon him in that [the victim] has several mental illness
          diagnoses; number nine, [Appellant’s] prior criminal record
          does include a crime of sexual assault being corruption of
          minors; number ten, [Appellant] has completed a prior
          sentence; however, a prior sentence was revoked due to a
          parole violation or probation violation, . . . ; number
          eleven, the [c]ourt has no knowledge as to whether or not
          the individual participated in available programs for sexual
          offenders; number twelve, at the time of the crime,
          [Appellant’s] age was approximately 48 years old; number
          thirteen, [Appellant] did not use illegal drugs in the
          commission of the offenses; number fourteen, [Appellant]
          does have mental illness, disability or mental abnormality
          as stated by the [SOAB] report; number fifteen, behavioral
          characteristics that contribute to the individual’s conduct,
          the Court believes that [Appellant] suffers from some form
          of alcohol abuse which may have contributed to his
          conduct, although there is no specific testimony as to
          whether or not drugs were used during the commission of
          the offense; . . .

          After analysis of the above factors and recognizing the
          legal requirements that the Commonwealth must prove by
          clear and convincing evidence that [Appellant] is [an SVP],
          the [c]ourt reaches the following conclusions of law;
          number one, [Appellant] does suffer from a mental
____________________________________________


6
  In referring to factor eight, the trial court referred to Appellant’s mental
capacity. The factor, however, refers to the victim’s mental capacity and, at
the conclusion of the hearing, the court clarified that it had referred to the
victim, not Appellant, in its findings. N.T., 5/1/2014, at 35.



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         abnormality or personality disorder that makes him likely
         to engage in predatory sexual violent offenses; number
         two, [Appellant], therefore, is found to be [an SVP] within
         the meaning of Megan’s Law.

N.T., 5/1/2014, at 32-35.

      Appellant challenges the sufficiency of the evidence regarding the trial

court’s determination that he was an SVP. Appellant’s Brief, at 3. He argues

Dr. Stein’s report and testimony did not constitute competent expert

evidence and was inadmissible.       Appellant’s Brief, at 10-12.        Appellant,

therefore, claims the trial court’s SVP determination was not supported by

sufficient evidence.

      When    reviewing   the   sufficiency   of   the   evidence   of    an   SVP

determination:

         [W]e will reverse the trial court only if the Commonwealth
         has not presented clear and convincing evidence sufficient
         to enable the trial court to determine that each element
         required by the statute has been satisfied. In most cases,
         we will determine whether the record supports the findings
         of fact made by the trial court and then review the legal
         conclusions made from them. However, in cases . . .
         where the trial court has stated its legal conclusions but
         has not provided specific findings of fact, we will review
         the entire record of the post-conviction SVP hearing as our
         scope of review is plenary.

Commonwealth v. Moody, 843 A.2d 402, 408 (Pa.Super.2004) (quoting

Commonwealth v. Krouse, 799 A.2d 835, 837-38(Pa.Super.2002)).                  We

will reverse the designation if, “based on all of the evidence viewed in a light

most favorable to the Commonwealth an SVP classification cannot be made




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out in a clear and convincing manner.” Id. (quoting Krouse, 799 A.2d at

837-38). Clear and convincing evidence means:

         [W]itnesses must be found to be credible, that the facts to
         which they testify are distinctly remembered and the
         details thereof narrated exactly and in due order, and that
         their testimony is so clear, direct, weighty, and convincing
         as to enable the jury to come to a clear conviction, without
         hesitancy, of the truth of the precise facts in issue.

Moody, 843 A.2d at 408 (quoting In re Fickert's Estate, 337 A.2d 592,

594 (Pa.1975)).

     Here, the Commonwealth relied upon the SOAB assessment report and

the testimony of Dr. Stein to prove Appellant was an SVP. The sentencing

court found Appellant was an SVP by clear and convincing evidence.      We

agree.

     Contrary to Appellant’s contention, Dr. Stein’s opinions were not mere

speculation and conjecture.   Dr. Stein reviewed the statutory factors and

discussed the evidence submitted to him.      Although Dr. Stein stated the

DSM-V provides that a diagnosis of pedophilic disorder requires a period of

six months or more of fantasies, urges, or behaviors, he also stated that

“the time period acknowledged by the DSM-V is arbitrary and it is subject to

the judgment of the individual reviewing the case.” N.T., 5/1/2014, at 21.

He opined that:

         [B]ased on the seriousness of the act, the seriousness of
         the grooming behavior, that there was some period of time
         over which such deviant sexual interest would have
         developed. We don’t know the exact period of time.
         There [was] more . . . than one act in this case. The

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          child’s account suggests many acts, although I can’t put a
          number on it. It is my clinical judgment that there has
          been a lengthy period of time over which such deviant
          sexual interest has been harbored by the Defendant, I
          can’t put an exact figure on the number of weeks or
          months or years that he has had this interest.

Id. at 22. Dr. Stein supported his conclusions with the evidence and stated

that his conclusions were within a reasonable degree of medical certainty.

Dr. Stein’s testimony constituted competent evidence and the trial court

properly adopted the findings.

       The record, including the testimony of Dr. Stein, supports the trial

court’s factual findings and its legal conclusions.   The court did not err in

finding the Commonwealth established Appellant was an SVP.7

       Order affirmed.




____________________________________________


7
  To the extent Appellant’s brief challenges the weight of the evidence, the
claim is waived and the argument fails. Commonwealth v. Fuentes, 991
A.2d 935, 944-45 (Pa.Super.2010) (finding the SOAB assessment report
constituted evidence and any challenges thereto affect the weight, not the
sufficiency, of the evidence). Appellant waived the claim when he failed to
raise it in a post-sentence motion. Commonwealth v. Barnhart, 933 A.2d
1061, 1066 (Pa.Super.2007) (finding appellant waived claim when not raised
in motion for new trial or post-sentence motion). Further, the court’s
determination that Appellant was an SVP does not shock the conscience.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa.2013) (“a new trial
should be awarded when the jury's verdict is so contrary to the evidence as
to shock one’s sense of justice and the award of a new trial is imperative so
that right may be given another opportunity to prevail”) (quoting
Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa.1994)).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/27/2015




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