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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                       1   IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                                Appellee

                           v.

DENNY LEE RUHL

                                Appellant                  No. 1753 MDA 2016


              Appeal from the Order Entered September 23, 2016
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0000344-2016


BEFORE:      GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                                FILED AUGUST 01, 2017

        Denny Lee Ruhl ("Ruhl") appeals from the order, entered by the Court

of Common Pleas of Lancaster County on September 23, 2016, which

designated him         a   Sexually Violent Predator ("SVP").1 After careful review,

we affirm.

        On December 3, 2015, Ruhl was charged with four counts of indecent

assault,2 two counts of corruption of minors,3 and two counts of unlawful




*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S.A.   §   9799.24.

2   18 Pa.C.S.A. § 3126(a)(7).

3   18 Pa.C.S.A. §     6301(a)(1)(ii).
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contact with minors.4         Ruhl engaged in various acts of sexual misconduct

with nine-year old J.E. and eight -year -old P.E. from February 2015 to

November 2015. Pursuant to          a   negotiated plea agreement, Ruhl pled guilty

to all counts on April 25, 2016.         He was sentenced to two to   four years of

incarceration, to be followed by twelve years of probation. Additionally, the

trial court ordered Ruhl to be evaluated by the Pennsylvania Sexual

Offenders Assessment Board ("SOAB"). At the time of the plea, Ruhl waived

the requirement that his evaluation be completed prior to sentencing

pursuant to 42 Pa.C.S.A.            §   9799.24(a)5.    See Commonwealth         v.

Whanger, 30 A.3d 1212 (Pa. Super. 2011) (defendant can waive pre -
sentence requirement in written colloquy).

        After his evaluation by the SOAB, the Commonwealth requested             a

hearing to establish whether Ruhl should be classified as an SVP pursuant to

section 9799.24. The hearing was held September 23, 2016, and the court

issued an order that same day concluding that Ruhl should be classified as

an SVP.     Ruhl filed   a   timely notice of appeal to this Court on October 20,




4   18 Pa.C.S.A. § 6318(a)(1).

5 After conviction, but before sentencing, a court shall order an individual
convicted of a sexually violent offense to be assessed by the SOAB. The
order for an assessment shall be sent to the administrative officer of the
SOAB within ten days of the date of conviction for the sexually violent
offense. 42 Pa.C.S.A. § 9799.24(a).



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2016. Ruhl filed his Pa.R.A.P. 1925(b) statement on November 2, 2016; the

Commonwealth did not file       a   response to Ruhl's statement.

        On appeal, Ruhl raises the following issues    for our review:

        1.  Whether the evidence was sufficient to establish by clear and
        convincing evidence that the Defendant was an SVP.

        2.  Whether the Court erred in relying upon the opinion of Dr. Stein,
        where said opinion was improperly based on unproven allegations
        (regarding T.W.) which were not part of the factual basis to the plea.

Trial Court Opinion, at 3.

        An SVP is defined as:

        An individual determined to be a sexually violent predator under
        section 9795.4 (relating to assessments) prior to the effective
        date of this subchapter or an individual convicted of an offense
        specified in:
             (1) section 9799.14(b)(1), (2), (3), (4), (5), (6), (8), (9)
             or (10) (relating to sexual offenses and tier system) or an
             attempt, conspiracy or solicitation to commit any offense
             under section 9799.14(b)(1), (2), (3), (4), (5), (6), (8),
             (9) or (10);
             (2) section 9799.14(c)(1), (1.1), (1.2), (1.3),(2), (3), (4),
             (5) or (6) or an attempt, conspiracy or solicitation to
             commit an offense under section 9799.14(c)(1), (1.1),
             (1.2), (1.3),(2), (3), (4), (5) or (6); or
             (3) section 9799.14(d)(1), (2), (3), (4), (5), (6), (7), (8)
             or (9) or an attempt, conspiracy or solicitation to commit
             an offense under section 9799.14(d)(1), (2), (3), (4), (5),
             (6), (7), (8) or (9)
        who, on or after the effective date of this subchapter, is
        determined to be a sexually violent predator under section




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        9799.24 (relating to assessments) due to a mental abnormality6
        or personality disorder that makes the individual likely to engage
        in predatory' sexually violent offenses.8 The term includes an
        individual determined to be a sexually violent predator or similar
        designation where the determination occurred in another
        jurisdiction, a foreign country or by court martial following a
        judicial or administrative determination pursuant to a process
        similar to that under section 9799.24. In addition, the term shall
        include any person convicted between January 23, 2005, and
        December 19, 2012, of any offense set forth in section
        9799.13(3.1) (relating to applicability) determined by a court to
        be a sexually violent predator due to a mental abnormality or
        personality disorder that made the person likely to engage in
        predatory sexually violent offenses, which person shall be
        deemed a sexually violent predator under this subchapter.9
42 Pa.C.S.A.     §   9799.12.

        Pursuant to 42 Pa.C.S.A.       §   9799.24, after conviction but prior to

sentencing,    a     trial court must order an individual convicted of   a   sexually

violent offense to be assessed by the SOAB.          Cf. Whanger, supra.        Once




6"Mental abnormality" is defined 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.A. § 9799.12.

7"Predatory" is defined as "[a]n 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 to facilitate or support victimization."
42 Pa.C.S.A. § 9799.12.

8"Sexually violent offense is defined as "[a]n offense specified in section
9799.14 (relating to sexual offenses and tier system) as a Tier I, Tier II or
Tier III sexual offense." 42 Pa.C.S.A. § 9799.12.
9
    Ruhl was convicted of the offenses listed in section 9799.14(b)(8), section
9799.14(c)(5), and section 9799.14(d)(8).


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the SOAB receives the court's order, the administrative director appoints         a


member to conduct an assessment to establish whether the individual should

be classified as an SVP.1°

        Section 9799.24(b) provides:

        An [SVP] 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.

        (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 of the individual.
              (ii)        Use of illegal drugs by the individual.
              (iii)       Any mental illness, mental disability     or   mental
                          abnormality.
              (iv)        Behavioral characteristics that contribute to the
                          individual's conduct.


10
     42 Pa.C.S.A.     §   9799.12.


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         (4) Factors that are supported in a sexual offender assessment
         field as criteria reasonably related to the risk of re -offense.

42 Pa.C.S.A.       §   9799.24(b) (emphasis added).

         A   determination of an individual's SVP status may only be made after

the SOAB's assessment and hearing before the trial court.11                  The proper

analysis for experts testifying at an SVP hearing is whether the defendants

satisfy the statutory definition of an SVP, specifically, whether they suffer

from "a mental abnormality or personality disorder that makes them likely to

engage in predatory sexually violent offenses."             42 Pa.C.S.A.     §    9799.12.

The fact finder is free to reject, accept, or give some weight to admitted

expert opinion evidence.             Commonwealth v. Stephens, 74 A.3d 1034,
1041 (Pa. Super. 2013).

         The question for the trial court determining an individual's SVP status

"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." Commonwealth v. Brooks,                      7   A.3d

852, 863 (Pa. Super. 2010) (citing 42 Pa.C.S.A.                 §   9792 (repealed), as

amended 2011, Dec. 20, P.L. 446, No. 111,             §   12).      On appeal of a     trial

court's classification of an individual as an SVP, the function of the Superior

Court "is one of review, and not of weighing and assessing evidence in the


11    42 Pa.C.S.   §   9799.24(e).


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first instance." Commonwealth v. Meals, 912 A.2d 213, 223 (Pa. 2006).

"In conducting sufficiency review, we must consider the evidence                       in   the light

most favorable to the Commonwealth, which prevailed upon the issue at

trial." Id. at 218 (citation omitted). This Court will reverse                     a   trial court's

determination        of    a   sexually     violent       predator      status    "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."        Brooks, supra at 860.
        In the instant case, the Commonwealth presented testimony from

Robert M. Stein, Ph.D., who conducted Ruhl's SOAB assessment.                               Dr. Stein

concluded that Ruhl met the requirements for SVP classification because he

suffered from        a    mental abnormality, namely pedophilic disorder, which

"describes sustained sexual interest in young children," and that he

exhibited predatory behavior.             N.T. SVP Hearing,       09/23/16, at 13-14.              Dr.

Stein described predatory behavior as "either an act directed at                       a    stranger,

or, if it's   a   familiar person, anything that either initiates or establishes or

maintains or promotes sexual victimization."                   Id. at    13.     Here, Dr. Stein

noted that the evidence supported                 a    finding that Ruhl's multiple acts of

sexual assault "serve to promote              a       sexually victimizing relationship with

each victim."       Id. at 13-14.     Dr. Stein concluded that there was sufficient

evidence indicating Ruhl "would re -offend in the future if given unsupervised

access to young girls."        Id. at 14-15.

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      In   making     his   determination,   Dr.    Stein   considered    the factors

enumerated in section 9799.24(b).        Dr. Stein based his conclusion on "the

acts with the children in this case and the history provided to police that

there was sufficient evidence that [Ruhl] 'has harbored sexual interest in

children for   a   period of greater than six months.'         Trial Court Opinion,

12/19/16, at   8   (citing N.T. SVP Hearing, 09/23/16, at 13).

      Ruhl's history, which was based in part on uncharged conduct, is what

led Dr. Stein to determine Ruhl's behavior was predatory.           Dr. Stein relied

on a police report from T.W., a family member of Ruhl's, regarding an

incident in 1999 where Ruhl molested her. Ruhl was twenty-one at the time,

while T.W. was nine. N.T. SVP Hearing, 09/23/16, at 8-9. Even though this

incident was not prosecuted, Dr. Stein relied on it because during the instant

investigation, Ruhl told his wife about the incident, the police interviewed

T.W., who confirmed the incident, and        a   report made to Childline regarding

that incident was discovered. Id. at 8-9. Dr. Stein testified that had he not

considered the uncharged and unproven allegations by victim T.W., the

period of more than six months would not have applied.          Id. at   17.

     At the SVP hearing, Ruhl presented testimony from Timothy                 P.   Foley,

Ph.D., who reviewed the information given to Dr. Stein and made his own

report. Dr. Foley analyzed the same factors as Dr. Stein, but concluded that

Ruhl was not an SVP. Specifically, he testified that his opinion differed from

Dr. Stein's because of the weight given to the previous allegations in 1999.


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Dr. Foley did not believe Ruhl had     a   sustained interest in children to render   a


diagnosis of pedophilic disorder based on the few incidents reported in this

case over     a   short period of time. Thus, he could not conclude that Ruhl had

a    mental abnormality.       Dr. Foley testified that he did not consider the

incident in 1999 to make his determination because he would not rely on

hearsay allegations that did not result in criminal charges in forming his

decision.12        Ultimately, Dr. Foley concluded that Ruhl was not an SVP

because he believed Ruhl "was less than likely" to reoffend in the future

based on his Static -99 score.13 N.T. SVP Hearing, 09/23/16, at 37.

        After careful consideration of the reports of both Dr. Stein and Dr.

Foley, as well as all of the evidence presented by both parties, the trial court

concluded that the evidence presented by the Commonwealth was sufficient

to prove by clear and convincing evidence that Ruhl was an SVP. The trial

court gave more weight to Dr. Stein's testimony than Dr. Foley's, as well as

to Pennsylvania statutory and decisional law, which:

        does not require an actual psychological diagnosis in order for
        there to be a mental abnormality which would classify an
        individual as a Sexually Violent Predator or that any assessment
        tool, such as the Static -99, must be utilized in lieu of clinical


12The charges Ruhl plead guilty to occurred between February 2015 to
November 2015, which is a period of greater than six months.

13 The Static -99 is an actuarial risk assessment tool that compares an
individual to 30,000 people on a number of factors and is correlated with
recidivism percentages over five to ten years. See N.T. SVP Hearing,
09/23/16, at 11.


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        judgment to determine whether     a     defendant   is less   like[ly] to re -
        offend.

Trial Court Opinion, 12/19/16, at 10.

        Ruhl alleges that the evidence before the court was not clear and

convincing as to whether he suffered from          a   mental abnormality that would

make him likely to commit predatory sexually violent offenses in the future.

To support this argument, Ruhl relies on a contradiction in Dr. Stein's

testimony regarding his reliance on the unproven allegations from 1999 to

achieve the six-month time period necessary for               a   medical diagnosis of

pedophilic disorder. We find Ruhl's claim is meritless.

        The trial court clarified this inconsistency. Dr. Stein explained that his

response to the cross-examination question at issue was meant to indicate

that without the six-month timeframe he would not be able to give                  a   medical

diagnosis of pedophilia.      N.T. SVP Hearing, 12/09/16, at 30-31.                The term

"mental abnormality," as used      in section    9799.12, however, "is        a   creation of

statute and not    a   medical diagnosis." Trial Court Opinion, 12/19/16, at 11.

Thus, the trial court and Dr. Stein both resolved that even if the six-month

period for pedophilic disorder was not met and no consideration was given to

the unproven allegations from the 1999 incident, the facts of this case still

support    a   conclusion that Ruhl has   a     mental abnormality, as defined by

statute.

        Ruhl also claims that the trial court erred in relying on Dr. Stein's

opinion because his opinion was based on the unproven allegations from the

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1999 incident with T.W., which were not part of the factual basis of his plea.

In reviewing     a   challenge to an SVP determination, this Court must "examine

all of the evidence adduced by the Commonwealth,          'without consideration   as

to the admissibility of that evidence.'         Meals, 912 A.2d at 224, fn. 14

(quoting Commonwealth v. Smith, 568 A.2d 600, 603 (Pa. 1989)).                     A

sufficiency of the evidence challenge to an SVP determination "requires the

reviewing court to accept the undiminished record of the case in the light

most favorable to the Commonwealth."                Id. at    218.    Furthermore,

Pennsylvania         law makes apparent that in determining SVP status,            an

evaluator   is   not restricted to the fifteen factors listed in the statute. See 42

Pa.C.S.A.   §    9799.24(b) ("An assessment shall include, but not be limited

to[...]") (emphasis added); see also Commonwealth v. Prendes, 97 A.3d
337, 360 (Pa. Super. 2014) (noting            "[t]he statute governing the      SVP

assessment does not limit the expert's consideration of information only to

that admitted at trial or at the guilty plea proceedings").

        Ruhl also claims that other experts in the field would not rely on

unproven allegations to make an SVP determination. Appellants Brief, at 18.

In Prendes, this Court held that SOAB expert opinions fall within the

general rules of expert witnesses. Prendes, 97 A.3d at 360-361. Thus, an

SOAB expert's opinion may be based on facts or data he or she has been

made aware of or personally observed as long as experts in the field

reasonably rely on those kinds of facts or data in forming an opinion on the
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subject.    Id.   The facts or data the expert used need not be admissible for

the expert's opinion to be admitted.        See Pa.R.E. 702, 703      The SOAB

expert must also state the facts or data on which his or her opinion    is based.

See Pa.R.E. 705.       Thereafter, the rules of evidence place the burden of

exposing any weaknesses in the expert's opinion on opposing counsel.

Prendes, 97 A.3d at 361 (citing In re D.Y. 34 A.3d 177, 183 (Pa. Super.

2011)).

        Here, Dr. Stein's report outlines the criteria he used in reaching his

opinion and the basis for his opinion in accordance with the rules of

evidence.    N.T. SVP Hearing, 12/09/16, at 6.    Ruhl argues that because Dr.

Foley did not rely on the police reports of the non -adjudicated incident, this

shows that it is not typical for other experts in the field to rely on such data.

This claim is without merit.      Showing that one expert did not rely on such

data does not prove other experts in the field do not reasonably rely on it.

Additionally, by agreeing to the introduction of Dr. Stein's report and failing

to raise any objection to its admission before the trial court, Ruhl waived any

argument that Dr. Stein's report was improperly based on unproven

allegations that were not    a   part of his guilty plea. See Commonwealth v.

Baker, 24 A.3d 1006, 1034 (Pa. Super. 2011).

        The Commonwealth presented clear and convincing evidence sufficient

to allow the trial court to determine that Ruhl should be classified as an SVP.




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The trial court did not err by relying on Dr. Stein's opinion, which was based

in   part on uncharged allegations.

         Accordingly, we affirm the trial court order classifying Ruhl as an SVP.

         Order affirmed.




Judgment Entered.




J
     /
     seph D. Seletyn,
Prothonotary


Date: 8/1/2017




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