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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :       IN THE SUPERIOR COURT OF
                                           :             PENNSYLVANIA
                    v.                     :
                                           :
ALLEN DALE McKINLEY,                       :          No. 2152 EDA 2015
                                           :
                         Appellant         :


        Appeal from the Judgment of Sentence, December 16, 2014,
               in the Court of Common Pleas of Bucks County
             Criminal Division at No. CP-09-CR-0001977-2014


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED AUGUST 18, 2016

     Allen Dale McKinley appeals from the December 16, 2014 aggregate

judgment of sentence of 9 to 30 years’ imprisonment, followed by 5 years’

probation, imposed after he pled guilty to statutory sexual assault, unlawful

contact with a minor, corruption of minors, and 3 counts each of aggravated

indecent assault -- person less than 16 years of age and indecent assault --

person less than 16 years of age.1 After careful review, we affirm.

     The relevant facts of the case are as follows. On January 22, 2014,

Detective   Daryl   Lewis   of   the   Pennridge    Regional   Police   Department

interviewed a 17-year-old female victim, M.C., regarding a series of sexual



* Retired Senior Judge assigned to the Superior Court.
1
   18 Pa.C.S.A. §§ 3122.1, 6318, 6301, 3125(a)(8), and 3126(a)(8),
respectively.
J. S52006/16


assaults that occurred at appellant’s home between 2009 and 2010. (Notes

of testimony, 7/29/14 at 41.)    M.C. stated that appellant, a friend of her

family, had sexually assaulted her on multiple occasions while she was

between the ages of 12 and 14. (Id. at 41-42.) Specifically, M.C. reported

that appellant touched and fondled her breasts, kissed her breasts and

vagina, and inserted his fingers into her vagina on multiple occasions. (Id.

at 42-43.)    M.C. further informed Detective Lewis that the sexual assaults

occurred once or twice a month between the ages of 13 and 14, and that on

at least two occasions, she had engaged in sexual intercourse with appellant.

(Id. at 43-44.) On February 6, 2014, appellant was subsequently arrested

after he acknowledged during an intercepted telephone conversation that he

had engaged in sexual contact with M.C. on multiple occasions.       (Id. at

44-45.)    At all relevant times during these incidents, appellant was 39 to

42 years of age. (Id.)

        On February 7, 2014, appellant was charged with statutory sexual

assault, unlawful contact with a minor, corruption of minors, three counts of

aggravated indecent assault, and four counts of indecent assault.         On

July 29, 2014, appellant pled guilty to all charges except one count of

indecent assault -- person less than 13 years of age,2 which was

nolle prossed upon motion of the Commonwealth.              Sentencing was

deferred pending an evaluation by the Sexual Offenders Assessment Board


2
    18 Pa.C.S.A. § 3126(a)(7).


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(“SOAB”) to determine whether appellant met the criteria for a sexually

violent predator (“SVP”).          Following a hearing, the trial court entered an

order on December 16, 2014, classifying appellant as an SVP.                 That same

day, the trial court sentenced appellant to an aggregate term of 9 to

30 years’ imprisonment, followed by 5 years’ probation. On December 23,

2014, appellant filed a post-sentence motion for reconsideration of sentence.

Following a hearing, the trial court denied appellant’s motion on June 24,

2015. This timely appeal followed on July 15, 2015.3

        On appeal, appellant raises the following issue for our review:

              A.       Did the trial court err in finding that the
                       Commonwealth established that appellant
                       meets the statutory criteria for classification as
                       [an SVP] as there was insufficient evidence to
                       establish appellant suffered from a mental
                       abnormality or personality disorder?

Appellant’s    brief     at   4.     Specifically,   appellant   maintains    that   the

Commonwealth failed to establish that he suffers from a mental abnormality,

as there is no mental abnormality of hebephilia recognized by the DSM-IV or

ICD-10, the primary reference material of psychiatrists. (Id. at 13-14.)

        The standard governing our review of the sufficiency of the evidence

with respect to an SVP determination is well established:

              A challenge to the sufficiency of the evidence is a
              question of law subject to plenary review. We must
              determine whether the evidence admitted at [the
              SVP hearing] and all reasonable inferences drawn
              therefrom, when viewed in the light most favorable

3
    Appellant and the trial court have complied with Pa.R.A.P. 1925.


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                to the Commonwealth as the verdict winner, is
                sufficient to support all elements of the [statute]. A
                reviewing court may not weigh the evidence or
                substitute its judgment for that of the trial court.

                At a hearing prior to sentencing the court shall
                determine whether the Commonwealth has proved
                by clear and convincing evidence that the individual
                is a sexually violent predator. In reviewing the
                sufficiency   of   the  evidence     regarding    the
                determination of SVP status, we will reverse the trial
                court only if the Commonwealth has not presented
                clear and convincing evidence sufficient to establish
                each element required by the statute.

Commonwealth v. Evans, 901 A.2d 528, 534 (Pa.Super. 2006), appeal

denied, 909 A.2d 303 (Pa. 2006) (citations omitted; bracketed information

in original).

      The Sex Offender Registration and Notification Act, 42 Pa.C.S.A.

§ 9791, et seq. (“SORNA”), defines a “sexually violent predator” as:

                [a] person who has been convicted of a sexually
                violent offense as set forth in § 9795.1 (relating to
                registration) and who is determined to be a sexually
                violent predator under § 9795.4 (relating to
                assessments) due to a mental abnormality or
                personality disorder that makes the person likely to
                engage in predatory sexually violent offenses.

42 Pa.C.S.A. § 9792.

      SORNA defines “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.”            Id.    In turn, SORNA defines


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“predatory” 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.” Id.

      We begin by addressing whether appellant has properly preserved his

claim for appellate review.    At the December 16, 2014 SVP hearing, the

Commonwealth presented the testimony of Dr. John M. Shanken-Kaye, a

15-year veteran of Pennsylvania’s SOAB who was qualified as an expert in

the assessment and treatment of adult sexual offenders.                (Notes of

testimony, 12/16/14 at 5, 7.) Dr. Shanken-Kaye testified that he completed

an assessment of appellant based upon his “past history, past offenses [and]

past treatment . . . [.]”     (Id. at 8-10.)     Dr. Shanken-Kaye opined to a

reasonable    degree   of   professional   and    psychological   certainty   that

“[appellant] me[t] the diagnostic criterion for something called Otherwise

Specified Paraphiliac Disorder, notably hebephilia or the sexual arousal and

attraction to pubescent females or females undergoing puberty, which is

considered a congenital or acquired condition.” (Id. at 14.) In reaching this

conclusion, Dr. Shanken-Kaye further explained that:

                   The victim was between the ages of 12 and 14
             and -- according to the information given me. And
             one of the delineations that I have to make or any of
             the individuals doing these types of assessment have
             to make, is whether this is an issue of pedophilia or
             an issue of hebephilia or a different type of deviant
             behavior.

                   In looking at sexuality or the sexual
             development of boys and girls we can look at


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               individuals that are prepubescent and that has a
               wide age range. In the diagnostic manuals they will
               speak of being up to 13 but we know that many
               individuals begin puberty, particularly in current
               times, as early as 7 or 8.

                     So there’s a long period of time called
               pubescence, puberty, and that is typically between
               the ages of about 10 and 14, sometimes 15. And
               what differentiates it from full-fledged adolescence is
               the fact that during that age range, particularly in
               the lower end of the age range, the individual is
               typically not fully sexually developed but is
               undergoing sexual development.

                       And that is why there is a special category of
               hebephilia for individuals that are attracted to boys
               or girls that are in the early stages of puberty versus
               individuals, for instance, that are only attracted to
               people who have no developed sexual characteristics
               at all.

Id. at 21-22.

       The record reflects that appellant failed to challenge or object to

Dr. Shanken-Kaye’s diagnosis on the basis that it is not recognized in the

DSM-IV or ICD-10. Appellant also failed to present his own expert witness

on the diagnosis of hebephilia or cite to any legal authority in his appellate

brief to support the conclusion that SORNA requires that the diagnosis of a

mental abnormality appear in the DSM-IV or ICD-10. “[W]here an appellate

brief fails to provide any discussion of a claim with citation to relevant

authority or fails to develop the issue in any other meaningful fashion

capable of review, that claim is waived.” Commonwealth v. Rahman, 75

A.3d    497,     504    (Pa.Super.    2013)    (citation   omitted);     see   also



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Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court are waived and

cannot be raised for the first time on appeal[]”); Pa.R.A.P. 2117(c)

(requiring citation to place in record where issue has been preserved).

Accordingly, we conclude that appellant’s claim is waived.4

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/18/2016




4
  Alternatively, even if appellant had not waived his claim, we agree with the
trial court’s well-reasoned conclusion that the Commonwealth established by
clear and convincing evidence that appellant met the criteria for SVP status.
(See notes of testimony, 12/16/14 at 48-50; trial court opinion, 12/29/15 at
7.)


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