J-A14015-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KENNETH ELWOOD SPRIGGLE,

                            Appellant                No. 1839 MDA 2014


            Appeal from the Judgment of Sentence October 15, 2014
                In the Court of Common Pleas of Snyder County
              Criminal Division at No(s): CP-55-CR-0000055-2014


BEFORE: BENDER, P.J.E., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED JULY 06, 2015

        Appellant, Kenneth Elwood Spriggle, appeals from the judgment of

sentence imposed following his guilty plea to two counts of Rape of a Child,

18 Pa.C.S. § 3121(c). Specifically, Appellant challenges his classification as

a Sexually Violent Predator (SVP). After careful review, we affirm.

        Appellant engaged in oral, vaginal, and anal sex on multiple occasions

with the female victim, beginning when the victim was 9 years old.        The

victim came forward to report the crimes in November of 2013, when she

was 14 years old. In January 2014, police intercepted a phone call between

the victim and Appellant, during which the victim mentioned having sex with

Appellant six times.        Appellant neither denied nor refuted the victim’s

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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statements     during     that   phone     call.   Later,   Appellant   admitted   to

investigators that he had sex with the victim on multiple occasions.

       Appellant entered a guilty plea to the aforementioned charges on July

14, 2014.1      Consequently, the trial court ordered an assessment by the

Sexual Offenders Assessment Board (SOAB) pursuant to 42 Pa.C.S. §

9799.24 (a) (“After conviction but before sentencing, a court shall order an

individual convicted of a sexually violent offense to be assessed by the

board.”). SOAB member C. Townsend Velkoff, M.S., conducted Appellant’s

assessment in this case and filed his report (hereinafter, “SOAB Report”)

with the trial court. In that report, Velkoff concluded that Appellant meets

the statutory criteria of an SVP.

       An SVP hearing was conducted on October 15, 2014, where Velkoff

was the only testifying witness. Following the hearing, the trial court found

“by clear and convincing evidence that [Appellant] is a[n] [SVP].”           Order,

10/15/14, at 1 (single page); see also N.T., 10/15/14, at 28 (“Based on the

testimony this morning by Mr. Velkoff, based … [on] his report, which has

been admitted in to [sic] evidence, the [c]ourt does find that [Appellant]




____________________________________________


1
  That same day, 29 other charges were dismissed by the trial court. The
record does not indicate whether the charges were dismissed pursuant to a
negotiated plea agreement; however, given the timing of the charges’
dismissal, we can reasonably assume that they were dismissed on that
basis.



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does meet the criteria for a[n] [SVP].”).       Appellant was subsequently

sentenced the same day to an aggregate term of 12-40 years’ incarceration.

     Appellant filed a timely notice of appeal on October 31, 2014, and a

timely, court-ordered Pa.R.A.P. 1925(b) statement on November 21, 2014,

in which he solely challenged his designation as an SVP.      The trial court

issued its Rule 1925(a) opinion on December 2, 1014, therein incorporating

its reasoning for the SVP designation from the SVP hearing.

     Appellant now presents the following question for our review: “Did the

trial court err when it found … Appellant … to be a[n] [SVP], pursuant to 42

Pa.C.S. § 9792, by clear and convincing evidence”? Appellant’s Brief, at 2.

     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. 2015)

(quoting Commonwealth v. Baker, 24 A.3d 1006, 1033 (Pa. Super.

2011)).

     This Court has explained the SVP determination process as
     follows:

          After a person has been convicted of an offense listed in
          [42 Pa.C.S.A. § 9799.14], the trial [court] then orders an
          assessment to be done by the [SOAB] to help determine if
          that person should be classified as a[n SVP. An SVP] is
          defined as a person who has been convicted of a sexually
          violent offense ... and who [has] a mental abnormality or

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        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 that the
        defendant's conduct was predatory.... Furthermore, in
        reaching a determination, we must examine the driving
        force behind the commission of these acts, as well as
        looking at the offender's propensity to reoffend, an opinion
        about which the Commonwealth's expert is required to
        opine. However, the risk of re-offending is but one factor
        to be considered when making an assessment; it is not an
        independent element.

     Commonwealth v. Stephens, 74 A.3d 1034, 1038–1039 (Pa.
     Super. 2013) (internal quotation marks, ellipsis, and citations
     omitted).

Hollingshead, 111 A.3d at 189-90.

     Finally,

     [w]hen performing an SVP assessment, a mental health
     professional must consider the following 15 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(s); the defendant's
     relationship with the victim(s); the victim(s)' age(s); whether
     the instant offense included a display of unusual cruelty by the
     defendant during the commission of the offense; the victim(s)'
     mental capacity(ies); the defendant's prior criminal record;
     whether the defendant completed any prior sentence(s);
     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.A. § 9799.24(b).


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Hollingshead, 111 A.3d at 190.

      The essence of Appellant’s claim is distilled in this portion of his

argument:

      Of all the testimony presented by Mr. Velkoff, the only issues
      that trended in the direction of … Appellant being adjudicated [as
      an] SVP were the age of the victim and the fact that … Appellant
      suffered from bipolar disorder. When pressed on whether these
      were the only dispositive issues for Mr. Velkoff’s opinion, he
      admitted that the vast majority of the factors indicated that the
      Appellant was not a[n] SVP, but that the age of the victim, and
      in particular that she was prepubescent, were of particular
      concern to him. He later admitted that he had no specific
      knowledge as to whether the victim was prepubescent in reality
      or not.

Appellant’s Brief, at 7.

      Appellant’s factual premise is flawed and unsupported by the record.

Appellant’s bi-polar disorder was not the “mental abnormality or personality

disorder” that provided the basis for Velkoff’s opinion that Appellant met the

criteria for an SVP.   Velkoff determined that Appellant met the diagnostic

criteria for pedophilia. N.T., 10/15/14, at 13; see also SOAB Report, at 6

(“This board member finds that [Appellant] does meet diagnostic criteria for

Pedophilic Disorder as defined in the DSM5”).

      Additionally, Appellant overlooks at least one factor tending to support

his designation as an SVP—“the nature of the sexual contact with the

victim.” Hollingshead, 111 A.3d at 190; 42 Pa.C.S. § 9799.24(b)(1)(iii). In

relation to this factor, the SOAB Report states:

      [Appellant] admitted that he engaged in penile/vaginal sexual
      intercourse and anal intercourse with the victim. [Appellant]


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      acknowledged that he also performed cunnilingus on the victim
      and had the victim perform fellatio on him. [Appellant] indicated
      that this sexual activity occurred between 5 and 10 times over
      the course of the instant offense.

SOAB Report, at 5. Relatedly, the SOAB Report indicates that these sexual

acts occurred over several years, beginning just before the victim turned 10

years old, and ending just before she turned 13 years old. Thus, Appellant’s

assertion that Velkoff’s opinion was based solely on Appellant’s bi-polar

diagnosis and the age of the victim is simply unfounded.

      Appellant   also   contends   that    his   case   is   similar   to   that   of

Commonwealth v. Merolla, 909 A.2d 337 (Pa. Super. 2006). In that case,

the Commonwealth appealed from the trial court’s determination that

Merolla was not an SVP.     Both the Commonwealth and Merolla presented

expert witnesses at an SVP hearing, experts who respectively testified that

Merolla was, and was not, an SVP.           The trial court concluded that the

Commonwealth’s expert’s testimony was not credible. We affirmed the trial

court, noting that “it is for the court to determine if a defendant is an SVP,

and a fact-finder is free to believe all, part or none of the evidence

presented.” Merolla, 909 A.2d at 344.

      In the present case, by contrast, the trial court found credible the

Commonwealth’s expert’s report and related testimony recommending that

Appellant be designated as an SVP.         That evidence demonstrated by clear

and convincing evidence that Appellant suffered from a mental condition that

predisposes him to perform criminal sexual acts (Pedophilic Disorder), and

that his cultivation of a sexual relationship with a pre-teen girl constitutes

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predatory behavior. Furthermore, Appellant did not present any witnesses

or evidence to contradict the Commonwealth’s evidence in that regard.

Thus, Merolla does not support Appellant’s argument(s). Consequently, we

conclude that Appellant’s claim—that the trial erred when it found him to be

an SVP—lacks merit.

     Judgement of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2015




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