J-S57023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA
                      Appellee

                 v.

JOSH L. ANDERSON,

                      Appellant                No. 2006 WDA 2015


        Appeal from the Judgment of Sentence November 6, 2015
            In the Court of Common Pleas of Warren County
          Criminal Division at No(s): CP-62-CR-0000189-2014


COMMONWEALTH OF PENNSYLVANIA,              IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA
                      Appellee

                 v.

JOSH L. ANDERSON,

                      Appellant                No. 2007 WDA 2015


       Appeal from the Judgment of Sentence September 18, 2015
              In the Court of Common Pleas of Warren County
 Criminal Division at No(s): CP-62-CR-0000305-2014, CP-62-CR-0000306-
                                   2014


COMMONWEALTH OF PENNSYLVANIA,              IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA
                      Appellee

                 v.

JOSHUA LEE ANDERSON,

                      Appellant                No. 2008 WDA 2015




                                  -1-
J-S57023-16


          Appeal from the Judgment of Sentence September 18, 2015
                 In the Court of Common Pleas of Warren County
    Criminal Division at No(s): CP-62-CR-0000305-2014, CP-62-CR-0000306-
                                      2014


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                        FILED NOVEMBER 03, 2016

        Appellant, Josh L. Anderson, also referred to as Joshua Lee Anderson,

appeals from the judgments of sentence imposed on November 6, 2015,

docketed at 2006 WDA 2015, and September 18, 2015, docketed at 2007

WDA 2015 and 2008 WDA 2015. This Court consolidated all of the cases sua

sponte pursuant to Pa.R.A.P. 513 on January 22, 2016. We affirm.

        Procedurally unusual and confusing filing actions, both below and in

this Court, have presented challenges to this disposition. The two appellate

dockets at 2007 and 2008 WDA 2015 appear to have been created due to

the manner in which the documents were transmitted to this Court. Review

of the certified record at 2007 WDA 2015, which is an appeal of lower court

docket CP-62-CR-0000305-2014, and the record at 2008 WDA 2015, which

is an appeal of lower court docket CP-62-CR-0000306-2014, appears to

indicate that Appellant’s counsel correctly filed a single notice of appeal in

the Warren County Court of Common Pleas, captioned with both lower court

docket numbers. These two lower court dockets had been consolidated for

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.



                                           -2-
J-S57023-16


trial by Warren County Court of Common Pleas order of December 23, 2014.

Thus, a single notice of appeal at both lower court docket numbers was

proper.   See Pa.R.A.P. 341 and comment thereto.         Inexplicably, however,

the Warren County Clerk of Courts apparently forwarded to this Court two

notices of appeal, as if there were two separate appeals taken, with the

original filed at CP-62-CR-0000305-2014 and a true and correct photocopy

at CP-62-CR-0000306-2014.        Hence, upon receipt of the two notices of

appeal, this Court issued two appellate dockets, 2007 WDA 2015 and 2008

WDA 2015, one to each notice of appeal we received. This action occurred

before we consolidated the appeals in this matter and before the certified

records were received by this Court.

      Adding to the procedural irregularity, the case at 2006 WDA 2015,

involving this Appellant but having a different victim, trial, and judgment of

sentence, was not assigned its own journal number and listed consecutively;

rather, this Court consolidated it sua sponte with 2007 and 2008 WDA 2015

in accordance with Pa.R.A.P. 513 by per curiam order on January 22, 2016.

Order, 1/22/16.     Thus, we have one brief from Appellant involving both

trials. In pursuit of clarity of disposition, initially, we have separated out the

appeal at 2006 WDA 2015 regarding the issue applicable only to that case.

The other issue Appellant raises relates to his sexually-violent-predator

(“SVP”) designation in both cases; thus, it is addressed subsequently.

Therefore, we have reordered the issues set forth in Appellant’s brief.


                                       -3-
J-S57023-16


            Facts and Procedural History in 2006 WDA 2015

       In the appeal docketed at 2006 WDA 2015, the trial court summarized

the facts as follows:

             Appellant met Victim, a sixteen year old minor, through
       Facebook. Appellant engaged in a course of conduct designed to
       create, promote, and maintain a relationship with Victim.
       Appellant eventually enticed Victim to spend a weekend with
       him. Appellant used a motor vehicle to transport Victim from
       her home to a motel. Appellant and Victim spent the weekend
       at the motel and engaged in sexual conduct.

Trial Court Opinion, 3/3/16, at 1.

       Appellant was convicted by a jury on August 24, 2015, of interference

with custody of children, luring a child into a motor vehicle, and corruption

of a minor, relating to this victim.   Following a hearing on November 6,

2015, the trial court determined that Appellant met the criteria of an SVP.

Also on November 6, 2015, the trial court imposed an aggregate sentence of

forty-eight to 108 months of imprisonment, delineated as follows:

   •   For interference with custody of children, a term of incarceration of
       twenty-seven to sixty months, to be served consecutively to the
       sentence Appellant was serving at Warren County Docket number 305
       of 2014;

   •   For luring a child into a motor vehicle, a term of incarceration of
       twelve to twenty-four months, to be served consecutively to the
       sentence imposed for interference with custody of children;

   •   For corruption of a minor, a term of imprisonment of nine to twenty-
       four months, to be served consecutively to the sentence imposed for
       luring a child into a motor vehicle.

Sentencing Order, 11/6/15, at unnumbered 1–2. Appellant filed a motion to

reconsider his sentence on November 12, 2015, which the trial court denied

                                     -4-
J-S57023-16


after argument on November 25, 2015. Order, 12/1/15. Appellant filed a

timely notice of appeal, and both Appellant and the trial court complied with

Pa.R.A.P. 1925.

                  Issue and Discussion in 2006 WDA 2015

      In his brief, Appellant raises the following issue in this case:

      Under Superior Court Docket[] 2006 WDA 201[5]/under Warren
      County Case Number: 189 of 2014 only[:]

      B. Whether the trial court erred by failing to merge the
      sentences of interference with custody of children (f2) and lure
      child into motor vehicle (m1) despite the fact “(1) the crimes
      arose from a single criminal act; and (2) all of the statutory
      elements of one of the offenses are included within the statutory
      elements of the other.”

Appellant’s Brief at 4 (full capitalization omitted).

      Appellant asserts that the trial court erred in failing to merge the

sentences of interference with custody of children and luring a child into a

motor vehicle.    A claim that the trial court imposed an illegal sentence by

failing to merge sentences is a question of law.           Commonwealth v.

Collins, 764 A.2d 1056, 1057 n.1 (Pa. 2001). Accordingly, our standard of

review is de novo and our scope of review is plenary. Commonwealth v.

Green, 2016 PA Super 214, 2672 EDA 2014 (Pa. Super. filed September 16,

2016).

      We have explained the inquiry when it is asserted that convictions

should have merged for sentencing purposes, as follows:




                                       -5-
J-S57023-16


            Section 9765 of the Pennsylvania Sentencing Code
      provides as follows regarding the merger of crimes for
      sentencing purposes:

            No crimes shall merge for sentencing purposes
            unless the crimes arise from a single criminal act and
            all of the statutory elements of one offense are
            included in the statutory elements of the other
            offense.    Where crimes merge for sentencing
            purposes, the court may sentence the defendant
            only on the higher-graded offense.

      42 Pa.C.S. § 9765. Accordingly, merger is appropriate only
      when two distinct criteria are satisfied: (1) the crimes arise from
      a single criminal act; and (2) all of the statutory elements of one
      of the offenses are included within the statutory elements of the
      other. Id.

Commonwealth v. Jenkins, 96 A.3d 1055, 1056 (Pa. Super. 2014)

(footnote omitted), appeal denied, 104 A.3d 3 (Pa. 2014).

      The Crimes Code defines interference with custody of children as

follows:

      (a) Offense defined.--A person commits an offense if he
      knowingly or recklessly takes or entices any child under the age
      of 18 years from the custody of its parent, guardian or other
      lawful custodian, when he has no privilege to do so.

18 Pa.C.S. § 2904 (a). The Crimes Code defines luring a child into a motor

vehicle or structure as follows:

      (a) Offense.--Unless the circumstances reasonably indicate that
      the child is in need of assistance, a person who lures or attempts
      to lure a child into a motor vehicle or structure without the
      consent, express or implied, of the child’s parent or guardian
      commits an offense.

                                    * * *




                                     -6-
J-S57023-16


     (b) Affirmative defense.--It shall be an affirmative defense to
     a prosecution under this section that the person lured or
     attempted to lure the child into the structure for a lawful
     purpose.

     (c) Definitions.--As used in this section, the following words
     and phrases shall have the meanings given to them in this
     subsection:

     “Child.” A person under 18 years of age.

     “Motor vehicle.” Every self-propelled device in, upon or by which
     any person or property is or may be transported or drawn on a
     public highway.

18 Pa.C.S. § 2910 (a)–(c).

     The crime of luring a child into a motor vehicle pursuant to 18 Pa.C.S.

§ 2910 sets forth three requirements that the Commonwealth must

establish: (1) the individual lured a child into a motor vehicle; (2) without

the express or implied consent of the child’s parent or guardian; and (3)

under circumstances which did not reasonably indicate the child is in need of

assistance.   Commonwealth v. Hart, 28 A.3d 898, 908–909 (Pa. 2011).

Furthermore, a “lure” under this section:

     does not occur upon the mere offer of a ride in a motor vehicle
     to a child, but, rather, involves only situations where a child is
     provided a further enticement or inducement to enter the
     vehicle, in addition to the offer of the ride, particularly under
     such circumstances which suggest the child is being led into a
     potentially harmful situation.

Id. at 910. The crime of interference with custody of children involves the

knowing or reckless taking or enticement of a child from his parent or




                                    -7-
J-S57023-16


guardian’s custody without privilege to do so. There is no involvement of a

motor vehicle.

      Appellant asserts that the trial court should have merged the above

offenses for sentencing because “the same elements had to be proven in

both charges.” Appellant’s Brief at 21. We disagree. Appellant claims that

it is “difficult to believe that if an individual ‘lured a child into a motor

vehicle’ and was being charged for such an act that this act also did not

include the interference of someone else’s right to custody of that child.”

Appellant’s Brief at 21. While acknowledging that luring a child into a motor

vehicle required a motor vehicle as an element, Appellant’s Brief at 22,

Appellant maintains that “the legislature did not say that both charges had

to have all of the elements of the other offense. . . .” Id. Appellant also

asserts that an examination of the criminal information supports the

conclusion that the offenses arose out of a single criminal act. Id. at 22–23.

      This Court recently explained that while an appellant’s crimes may

occur during the same criminal episode, it is possible to engage in distinct

acts that constitute separate crimes for which separate sentences are

proper. We advised:

      In this regard, this Court’s holding in Commonwealth v.
      Pettersen, 49 A.3d 903 (Pa. Super. 2012) is instructive:

            When considering whether there is a single criminal
            act or multiple criminal acts, the question is not
            whether there was a break in the chain of criminal
            activity. The issue is whether the actor commits
            multiple criminal acts beyond that which is

                                    -8-
J-S57023-16


              necessary to establish the bare elements of the
              additional crime, then the actor will be guilty of
              multiple crimes which do not merge for sentencing
              purposes.

      Id. at 912 (quotations and citations omitted).

Green, 2016 PA Super 214, at *8–9.

      Upon review, we conclude that Appellant’s argument is meritless. In

doing so, we adopt as our own the well-reasoned analysis of the trial court,

as follows:

             The first requirement of merger is that the crimes arise
      from the same criminal act. That is not the factual situation in
      the present case. 42 Pa.C.S. § 9765. Appellant lured Victim
      into his motor vehicle outside of her home. Appellant then took
      Victim to a motel to engage in sexual conduct for the weekend.
      Appellant completed commission of the crime of Luring a Child
      into a Motor Vehicle when the Victim entered Appellant’s motor
      vehicle outside of Victim’s home. Appellant then continued to
      commit the crime of Interference with Custody of Children for
      the remainder of the weekend. The crimes were committed at
      different times and for differing lengths of time.

            The second requirement of merger is that all of the
      statutory elements of one offense are include[d] in the statutory
      elements of the other offense. Appellant’s essential argument is
      that the element relating to “consent” for the crime of Luring a
      Child into a Motor Vehicle and the element relating to “custody”
      for the crime of Interference with Custody of Children are the
      same element. Appellant failed to provide any legal support for
      that contention. Conflation of the terms “consent” and “custody”
      would violate the rules of statutory interpretation. Statutory
      construction regarding words and phrases specifies the
      following:

              Words and phrases shall be construed according to
              rules of grammar and according to their common
              and approved usage; but technical words and
              phrases and such others as have acquired a peculiar
              and appropriate meaning or are defined in this part,

                                     -9-
J-S57023-16


              shall be construed according to such peculiar and
              appropriate meaning or definition.

       1 Pa.C.S. § 1903(a). The terms “consent” and “custody” are
       technical legal terms that have very different meanings.
       Therefore, the rules of statutory interpretation require the
       interpretation that the elements are distinct from one another.

             Appellant failed to show that the facts and the law required
       the merger of the crimes of Luring a Child into a Motor Vehicle
       and Interference with Custody of Children in this case.

Trial Court Opinion in case docketed at 2006 WDA 2015, 3/3/16, at 3–4.

       We also note that interfering with the custody of a child does not

involve luring and the use of a motor vehicle. Thus, the merger issue lacks

merit.

      Facts and Procedural History for 2007 and 2008 WDA 2015

       The factual basis for the appeals docketed at 2007 WDA 2015 and

2008 WDA 2015 involves another victim, as follows:1

       1) On    7/22/14,     Officers   from   this   Department     were
          dispatched . . . for a report of a possible 14 year old juvenile
          female having intimate contact with a known 34 year old
          male, . . .[Appellant]. The complainant stated that they
          witnessed the two kissing next to [Appellant’s] vehicle, which
          was parked near the residence.

       2) Officers    arrived   and     spoke    with    the    juvenile’s
          mother, . . . who stated that she and the victim look alike and
          it was actually her kissing [Appellant] who is her boyfriend,
          not the juvenile. On 7/27/14 Officers from this Department
____________________________________________


1
  Because Appellant has failed to provide the notes of testimony from trial,
and indeed, did not request their transcription, and the trial court did not
summarize the facts of the crime, we have relied upon the affidavit of
probable cause for explanation.



                                          - 10 -
J-S57023-16


       were on another call . . . and witnessed [Appellant] at the
       residence of the juvenile victim. The victim’s father was
       confronted and he stated that [Appellant] liked his daughter
       and [he] wanted him off his property and away from the
       victim.

     3) [Appellant] was told to leave the residence and stay away
        from the juvenile victim. The victim was brought to the City
        Police Department on 7/28/14 by her father and when asked
        if she knew why she was brought there she stated she did.
        The victim explained that she had sent [Appellant] naked
        photographs of herself via cellular phone messaging and she
        knew he was over the age of 18 years old.

     4) On 7/30/14, your Affiant met the victim and her father at the
        Offices of Warren County C & Y where the victim was
        forensically interviewed. The victim revealed that she loved
        [Appellant,] and he asked her to send the photos of her
        naked body to [him]. The victim also admitted at this time
        that they have engaged in sexual intercourse and her
        mother . . . knew this and allowed it to happen.

     5) On 7/31/14, your Affiant was advised that the victim in this
        case was changing her story about having sexual intercourse
        with [Appellant]. Your Affiant was advised this was after the
        victim spoke with [her mother] and [Appellant]. The victim
        was also taken from Warren by [her mother] and driven to
        the Youngsville Police Department to change her story,
        stating she was in love with [Appellant].

     6) On 8/13/14, your Affiant met with [the victim’s mother] at
        the City Police Department. [The victim’s mother] was read
        the Miranda Warnings and she waived them agreeing to give
        a statement at this time. [The victim’s mother] admitted that
        she was involved in a sexual relationship with [Appellant]
        since June of this year. [The victim’s mother] also admitted
        that she and [Appellant] came up with a plan for [Appellant]
        to date her juvenile daughter.

     7) [The victim’s mother] admitted to your Affiant, that the first
        contact with the police on July 22 2014, she lied to them
        about her daughter kissing [Appellant]. [The victim’s mother]
        stated that she did know that [Appellant] had sex with her
        juvenile daughter and she continued to engage in sexual

                                  - 11 -
J-S57023-16


          relations with [Appellant] also. [The victim’s mother] stated
          that she did not have legal custody of her daughter and the
          victim’s father was not advised of any of their plans.

Affidavit of Probable Cause, 9/4/14, at 1.

        At Warren County Docket Number 305 of 2014, Appellant was charged

with one count each of conspiracy to interfere with custody of children,

corruption of a minor, and obstructing administration of law or other

governmental function for crimes involving the fourteen-year-old victim. At

Warren County Docket Number 306 of 2014, Appellant was charged with one

count each of statutory sexual assault, corruption of a minor, and indecent

assault for other crimes relating to this same victim. As noted supra, prior

to trial and upon the Commonwealth’s motion, the trial court consolidated

the cases at these two Warren County docket numbers on December 23,

2014.

        On January 20, 2015, a jury acquitted Appellant of obstructing

administration of law or other governmental function and convicted him of

all other charges.   The trial court ordered an assessment by the Sexual

Offenders    Assessment    Board   (“SOAB”).     Following   a   hearing   on

September 18, 2015, the trial court determined that Appellant met the




                                    - 12 -
J-S57023-16


criteria of an SVP.2 Also on September 18, 2015, the trial court sentenced

Appellant as follows:

        At Warren County Docket Number 305 of 2014, the case docketed in

this Court at 2007 WDA 2015:

    •   For conspiracy to interfere with custody of children, a term of
        incarceration of twenty-four to forty-eight months;

    •   For corruption of a minor, a term of incarceration of twelve to twenty-
        four months, to be served consecutively to the sentence imposed for
        conspiracy to interfere with custody of children.

        At Warren County Docket Number 306 of 2014, the case docketed in

this Court at 2008 WDA 2015:

    •   For statutory sexual assault, corruption of a minor, and indecent
        assault, “which merge for sentencing purposes” a “sentence[] in the
        Aggravated Range as follows:”

          o Incarceration of seventy-two to 144 months, to be served
            consecutively to the sentence imposed at Warren County Docket
            Number 305 of 2014 for corruption of a minor.

        This resulted in an aggregate sentence of 108 to 216 months.

Sentencing Order, 9/18/15, at unnumbered 1–3. That same day, the trial

court amended the sentence to note that Appellant was “not Boot Camp or




____________________________________________


2
  This order was dated September 18, 2015, and docketed on October 9,
2015.



                                          - 13 -
J-S57023-16


RRRI[3] eligible.” Amended Sentencing Order, 9/18/15.4

       Appellant filed a motion to reconsider his sentence and a motion for a

new trial on September 28, 2015, which the trial court denied on

November 23, 2015.         Appellant filed a notice of appeal on December 21,

2015; both Appellant and the trial court complied with Pa.R.A.P. 1925.

                               Issue and Discussion

       Appellant raises the following issue that is pertinent to the cases

docketed at 2006, 2007, and 2008 WDA 2015:

       Under Superior Court Dockets 2006, 2007 and 2008 WDA
       201[5]/Warren County Case Numbers: 189, 305 and 306 of
       2014[:]

       A. Whether the trial court erred in finding the Commonwealth
       proved by clear and convincing evidence that [A]ppellant is a
       sexually violent predator?

Appellant’s Brief at 4 (full capitalization omitted).

       Appellant challenges the sufficiency of the evidence supporting his

designation as an SVP, and he does so as it relates to both victims.     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
____________________________________________


3
  RRRI is the acronym for Recidivism Risk Reduction Incentive. 61 Pa.C.S.
§§ 4501–4512.
4
   The amended sentencing order was docketed on October 8, 2015. For
purposes of clarity, while the trial in the case docketed at 2006 WDA 2015
occurred first, the SVP designation and sentencing therein were subsequent
to the matter docketed at 2007 and 2008 WDA 2015.



                                          - 14 -
J-S57023-16


          fact-finder found clear and convincing evidence that
          the individual is an 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. Baker, 24 A.3d 1006, 1033 (Pa. Super.
     2011), aff’d, 621 Pa. 401, 78 A.3d 1044 (2013) (citation
     omitted).

           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
          an SVP. An SVP is defined as a person who has been
          convicted of a sexually violent offense . . . and who
          has 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 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 re-offend, 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.


                                  - 15 -
J-S57023-16


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

            When 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 re-
     offending. See 42 Pa.C.S.A. § 9799.24(b).

Commonwealth v. Hollingshead, 111 A.3d 186, 189–190 (Pa. Super.

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

     As noted supra, 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.     Baker, 24

A.3d at 1033. While Appellant asserts that “many of the statutory factors of

42 Pa.C.S.A. § 9795.4(b) are absent,” Appellant’s Brief at 15, he does not

identify what factors are missing. Id. Further, Appellant contends that the

discussion of predatory behavior by SOAB-certified member Brenda Manno,




                                   - 16 -
J-S57023-16


who also is a licensed clinical social worker,5 lacked any testimony that

Appellant likely would re-offend, yet he fails to indicate where in the record

such discussion exists. Appellant’s Brief at 16; N.T., 11/6/15, at 3. It is not

this Court’s responsibility to comb through the record seeking the factual

underpinnings of Appellant’s claim.            Commonwealth v. Mulholland, 702

A.2d 1027, 1034 n.5 (Pa. Super. 1997). Moreover, we note that “the risk of

re-offending is but one factor to be considered when making an assessment;

it is not an independent element.” Hollingshead, 111 A.3d 189–190.

       In assailing Appellant’s SVP status, counsel confusingly combines the

argument relating to Ms. Manno’s findings in both cases, even though the

witness conducted two separate evaluations.               Indeed, counsel quotes

Ms. Manno’s testimony defining predatory behavior, the very testimony

alleged to be absent, but wholly fails to identify the hearing, date, or place in

the record where the testimony can be found.              Appellant’s Brief at 17.

Appellant fails to specify where and in what record his contentions are

relevant, instead arguing only in general terms that the evidence supporting

the SVP finding is insufficient.

       We disagree that Ms. Manno failed to testify regarding predatory

behavior in general or that Appellant was likely to re-offend, specifically. At

the November 6, 2015 hearing in the appeal docketed at 2006 WDA 2015,
____________________________________________


5
   The parties stipulated that Ms. Manno, who testified in both cases, was
testifying as an expert witness. N.T., 11/6/15, at 4; N.T., 9/18/15, at 4.



                                          - 17 -
J-S57023-16


Ms. Manno pointed out that “there’s been victimization of three victims[6]

now, all teenage female victims” reaching back to the year 2000, which

impliedly relates to Appellant’s willingness to re-offend.   N.T., 11/6/15, at

20.    Specifically relating to Appellant’s predatory behavior, Ms. Manno

stated:

       [T]here is a lengthy criminal history, that he already has a prior
       conviction for a sex offense against a minor, yet he engages in
       communication and Facebook friending a minor. He progresses
       that relationship to the point that he picks her up at the
       residence and takes her to a motel where he engages in sexual
       activity with her. Clearly that is maintenance or promotion at
       least in part to move that relationship into the sexual realm with
       this child.

Id. at 23–24.        The trial court in 2006 WDA 2015 noted that Appellant

presented no evidence to rebut the Commonwealth’s evidence and

concluded:

       Since the only evidence presented at the hearing was the
       assessment that engaged in the appropriate analysis and
       concluded that Appellant has a mental abnormality or disorder
       making Appellant likely to engage in predatory sexually violent
       offenses, then it was proper for the Court to find that the
       Commonwealth met it burden.

Trial Court Opinion in 2006 WDA 2015, 3/3/16, at 3.

       At the September 18, 2015 hearing in the case docketed at 2007 and

2008 WDA 2015, Ms. Manno testified as follows:


____________________________________________


6
  The reference to a third victim involved sexual activity prior to the instant
cases. N.T., 11/6/15, at 10.



                                          - 18 -
J-S57023-16


           [Appellant’s] been in criminal situations before where he’s
     been convicted of crimes and served periods of incarceration and
     probation. Specifically, he already [had] a history with a 16 year
     old child that he was criminally charged [with] so he clearly has
     knowledge that that behavior is inappropriate, yet he continues
     to promote this relationship, at least in part into the sexual
     realm with this girl, and that’s predatory in nature.

N.T., 9/18/15, at 21 (emphasis added). In addressing Appellant’s argument

that he was not an SVP, the trial court in the cases docketed at 2007 and

2008 WDA 2015, stated as follows:

     Appellant does not argue that the Commonwealth failed to
     present necessary evidence. Instead, Appellant argues that the
     assessment found that certain factors were not present. That
     argument is without any merit:

           In order for a person to be designated an SVP, the
           crime committed in the case under consideration
           need not have been predatory, although it must
           have been a sexually violent one. Commonwealth v.
           Fletcher, 2008 PA Super 74, 947 A.2d 776,776 (Pa.
           Super. 2008). Rather, what is required is that the
           person’s mental abnormality makes the person likely
           to engage in predatory behavior, whether or not the
           offense at issue was predatory. Id. Naturally, the
           facts of the instant offense are material to the SVP
           assessment. See 42 Pa.C.S.A. § 9795.4(6) now
           9795.24. However, there simply is no requirement
           that the charge under consideration be a predatory
           offense. Fletcher, 947 A.2d at 776. Also, with
           regard to the various assessment factors listed
           in Section 9795.4 now 9795.24, there 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.
           Commonwealth v. Meals, 590 Pa.110, 912 A.2d 213,
           220 -23 (2006). The factors are not a checklist with
           each one weighing in some necessary fashion for or
           against SVP designation. Id. at 222. Rather, the
           presence or absence of one or more factors might
           simply suggest the presence or absence of one or

                                    - 19 -
J-S57023-16


              more particular types of mental abnormalities. See
              id.at 221. Thus, while the Board is to examine all
              the factors listed under Section 9795.4 now 9795.24,
              the Commonwealth does not have to show that any
              certain factor is present or absent in a particular
              case. Meals, 912 A.2d at 221. 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. 42 Pa.C.S.A. § 9792.

       Commonwealth v. Feucht, 2008 PA Super 176, ¶¶ 15-17, 955
       A.2d 377, 381 (emphasis [in original]); 42 Pa.C.S. § 9795.24.
       As a Tier II sexual offense, Statutory Sexual Assault is, by
       statutory definition, a sexually violent offense.    42 Pa.C.S.
       § 9799.12; 42 Pa.C.S. § 9799.14(c). Appellant does not allege
       that the Sexually Violent Predator Assessment failed to consider
       a necessary factor, Appellant only alleges that the assessment
       found that certain factors were not present, which does not
       invalidate the assessment results. The [c]ourt also notes that
       Appellant did not present evidence to rebut the Commonwealth’s
       evidence. Since the only evidence presented at the hearing was
       the assessment that engaged in the appropriate analysis and
       concluded that Appellant has a mental abnormality or disorder
       making Appellant likely to engage in predatory sexually violent
       offenses, then it was proper for the [c]ourt to find that the
       Commonwealth met its burden.

Trial Court Opinion in cases docketed at 2007 and 2008 WDA 2015, 3/4/16,

at 1–2 (emphasis in original).

       Appellant also suggests the instant cases are “similar in some

respects” to Commonwealth v. Plucinski, 868 A.2d 20 (Pa. Super. 2005).7

____________________________________________


7
  But see Commonwealth v. Morgan, 16 A.3d 1165, 1173 (Pa. Super.
2011), where this Court recognized that in Meals, 912 A.2d 213, our
Supreme Court effectively overruled our decision in Plucinski.



                                          - 20 -
J-S57023-16


In describing that case, Appellant wholly fails to identify in what “respects”

the case is similar.     Appellant’s Brief at 16.   Our independent review of

Plucinski, however, emphasizes significant differences from the instant

cases, most importantly that therein, it was the “appellant’s first sexual

offense and that [he] had no history of failed treatment.” Id., 868 A.2d at

27.   In this case, Appellant continues to re-offend and has an extensive

criminal history that includes repeated sexual behavior with teenage girls.

      We     have    reviewed Ms.   Manno’s    testimony at the   hearing on

September 18, 2015, in the case at 2007 and 2008 WDA 2015, as well as

her testimony at the hearing on November 6, 2015, in the case at 2006

WDA 2015.           Ms. Manno presented sufficient evidence of Appellant’s

predatory nature; therefore, we conclude that Appellant’s argument is

meritless.

      Judgment of sentence dated November 6, 2015, affirmed.

      Judgment of sentence dated September 18, 2015, affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/3/2016




                                      - 21 -
