J-S14030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                             Appellee

                        v.

ANDREW JOSEPH DIEROLF

                             Appellant                    No. 1243 MDA 2015


              Appeal from the Judgment of Sentence July 1, 2015
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0003824-2014


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J.                                 FILED APRIL 15, 2016

        Appellant, Andrew Joseph Dierolf, appeals from the judgment of

sentence entered July 1, 2015, in the Court of Common Pleas of Berks

County. On appeal, Appellant challenges his designation as a sexually violent

predator (SVP) pursuant to the Sexual Offender Registration and Notification

Act (SORNA), 42 Pa.C.S.A. §§ 9799.10-9799.41. We affirm.

        Appellant entered a negotiated guilty plea to one count of Unlawful

Contact with a Minor, 18 Pa.C.S.A. § 6318(a)(5), a sexually violent offense

under Section 9799.14(c)(5). At the plea hearing, Appellant admitted that

he     contacted    a   ten-year-old     minor   female   over   the   internet—his

stepdaughter—and, posing as a twelve-year-old boy, requested that the

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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victim send pictures of her breasts and vagina. See N.T., Plea Hearing,

3/6/15 at 5-6. At the time, Appellant was 31-years old. See Id. at 6.

Appellant further admitted that police discovered on his phone at least one

photograph of a juvenile female under the age of 18 depicted in a sexual

act. See id. The court scheduled sentencing and directed the Sexual

Offenders Assessment Board (SOAB) to conduct an evaluation to determine

if Appellant was an SVP. Following the SVP determination hearing, the trial

court ultimately agreed that Appellant met the SVP requirements. The trial

court thereafter sentenced Appellant to a term of six to 23 months’

imprisonment, to be followed by five years’ probation. Appellant filed a post-

sentence motion for reconsideration, which the trial court denied. This timely

appeal followed.

      Our standard when reviewing the sufficiency of the evidence to

support a trial court’s SVP designation is as follows.

      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),

appeal denied, 125 A.3d 1199 (Pa. 2015) (citation omitted). The task of

the Superior Court on appeal of a trial court's classification of a criminal

offender as an SVP “is one of review, and not of weighing and assessing

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evidence in the first instance.” Commonwealth v. Meals, 912 A.2d 213,

218 (Pa. 2006).

      An SVP is a person who has committed a sexually violent offense

under Section 9799.14 and who fits the SVP criteria set forth in Section

9799.24 “due to a mental abnormality or personality disorder that makes

the individual likely to engage in predatory sexually violent offenses.” 42

Pa.C.S.A. § 9799.12. Section 9799.12 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.

After conviction for a sexually violent offense and prior to sentencing,

Pennsylvania law requires the SOAB to conduct an assessment of the

convicted party and the trial court to hold a hearing to determine SVP

status. See 42 Pa.C.S.A. § 9799.24(a). In its assessment, the SOAB must

include, but is not limited to, an evaluation of the following factors.

      (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:


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         (i) The individual's 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.A. § 9799.24(b).

      This Court has previously stated that the “salient inquiry for the trial

court is the identification of the impetus behind the commission of the crime,

coupled with the extent to which the offender is likely to reoffend.’’

Commonwealth v. Dixon, 907 A.2d 533, 536 (Pa. Super. 2006) (internal

quotes and citation omitted).

      In the instant case, Appellant pled guilty to Unlawful Contact with a

Minor, a sexually violent offense under Section 9799.14(c)(5). At the hearing

to determine Appellant’s SVP status, the SOAB expert, Veronique Valliere,

Psy.D., testified based upon her evaluation that Appellant suffers from a

mental abnormality; specifically, an Other Specific Paraphilic Disorder. See

N.T., SVP Hearing, 7/1/15 at 8. Dr. Valliere defined a paraphilic disorder as

“a deviate sexual arousal pattern that creates a maladaption [sic] in

somebody’s life, [which] either serves to victimize others or creates



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problems in the individual’s social, emotional and occupational functioning.”

Id. Dr. Valliere found clear evidence that Appellant has a sexual arousal

towards children based upon his victimization of the minor child in the

current offense, as well as his collection of child pornography. See id. at 8-

9. Dr. Valliere observed that Appellant’s disorder has persisted since his

childhood juvenile sex offending which began at age twelve. See id.

      Dr. Valliere also diagnosed Appellant with antisocial personality

disorder, which she described as a chronic pervasive disorder marked by a

disregard for the rules and the rights of others, failure to respond to

consequences and intervention, aggressiveness, repeated violations of the

law, and repeated resistance to negative sanctions. See id. at 9.

      Dr. Valliere proceeded to analyze the fourteen factors under Section

9799.24(b) as they applied to Appellant. See id. at 12-13. She opined that

Appellant’s conduct in posing as a twelve-year-old boy in order to establish a

secret deceptive relationship with the victim, who was his stepdaughter, for

the sole purpose of victimization, clearly exhibited predatory behavior. See

id. at 10. She further stated that Appellant’s history in juvenile sexual

offender treatment and his recidivism even after treatment established

Appellant’s likelihood of re-offending to engage in predatory behavior. See

id. Based upon her evaluation of the evidence, Dr. Valliere ultimately

concluded that Appellant met the classification criteria of an SVP.

      After reviewing the record, we determine that Dr. Valliere's testimony,

as well as the SVP Assessment Report prepared in this matter, adequately

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demonstrated that    Appellant suffers    from “a mental abnormality or

personality disorder that makes [him] likely to engage in predatory sexually

violent offenses.” 42 Pa.C.S.A. § 9799.12. Dr. Valliere diagnosed Appellant

with Other Specific Paraphilic Disorder and Antisocial Personality Disorder.

She analyzed, at length, the statutory factors set forth in Section

9979.24(b). Several of the factors worked against Appellant’s interest, such

as his history of sexual contact with multiple children, his trove of child

pornography, his solicitation of sexual images from the minor victim, the age

of the victim, Appellant’s age, Appellant’s relationship with the victim,

Appellant’s paraphilia diagnosis, his recidivism after juvenile sex offender

treatment and Appellant’s predatory conduct. See N.T., SVP Hearing, 7/1/15

at 12-13.

     Appellant objects to Dr. Valliere’s reference in her report of a prior

2007 rape investigation, which was dismissed after the victim recanted her

testimony. When Appellant’s counsel questioned Dr. Valliere on the inclusion

of this event in her report at the SVP determination hearing, she stated that

the recanted rape allegation was not a significant factor in the formation of

her opinion, but opined that the fact that the investigation was not a

deterrent for recidivism spoke to Appellant’s state of mind. See N.T., SVP

Hearing, 7/1/15 at 15-16. The trial court credited the evaluator’s testimony,

see Trial Court Opinion, 9/16/15 at 4-5, and we are therefore satisfied that

the withdrawn rape allegation was not a substantial factor in Dr. Valliere’s




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analysis. Accordingly, Appellant’s effort to challenge the validity the report

on this basis fails.

      Based on our review of the evidence presented at Appellant’s SVP

hearing, including the report and testimony of Dr. Valliere, and viewing that

evidence    in   the   light   most   favorable   to   the   Commonwealth,   see

Hollingshead, supra, we conclude that the trial court did not err in finding,

by clear and convincing evidence, that Appellant satisfies the criteria to be

classified as an SVP.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/15/2016




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