J-S50036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

STEPHEN CARRUTHERS

                            Appellant                 No. 1957 MDA 2015


              Appeal from the Judgment of Sentence July 28, 2015
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0002107-2013


BEFORE: MUNDY, J., STABILE, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                                FILED JULY 08, 2016

        Appellant, Stephen Carruthers, appeals nunc pro tunc from the July

28, 2015 judgment of sentence of 15 to 20 years’ imprisonment, plus 20

years’ probation, after being convicted by a jury of a multitude of sex

offenses which occurred over an eight year period. The trial court also found

Appellant to be a sexually violent predator (SVP). After careful review, we

affirm.

        The trial court accurately recounted the facts of record, which, upon

review of the certified record, we adopt in this disposition. See Trial Court



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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Opinion, 1/4/16, at 3-6. Following sentencing, Appellant filed a timely notice

of appeal on August 21, 2015.1

       On appeal, Appellant presents a single issue for our review.

                    Did not the Commonwealth fail to prove
              [Appellant’s] status as a “sexually violent predator”
              when the Commonwealth’s expert did not undergo
              an independent risk assessment as to the likelihood
              of re-offense and, instead, concluded in effect that
              all persons who have committed hands-on sexual
              offenses and who are diagnosed with pedophilic
              disorder, ipso facto, are “likely” to reoffend?

Appellant’s Brief at 6.

       Preliminary, we recognize the legal authority relevant to our analysis

as follows.

              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 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,
____________________________________________


1
   The appeal was withdrawn and discontinued on October 13, 2015;
however, Appellant filed a petition for post-conviction collateral relief on
October 29, 2015, after which the trial court reinstated his direct appeal
rights nunc pro tunc. We further note that Appellant and the trial court have
complied with Pennsylvania Rule of Appellate Procedure 1925.



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               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).

          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
          reoffending. See 42 Pa.C.S.A. § 9799.24(b).

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J-S50036-16



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

2015), appeal denied, 125 A.2d 1199 (Pa. 2015).

      On appeal, a challenge to a determination of SVP status requires us to

view the evidence in the light most favorable to the Commonwealth.

Commonwealth v. Prendes, 97 A.3d 337, 355-356 (Pa. Super. 2014),

appeal denied, 105 A.3d 736 (Pa. 2014) (citation omitted).        We may not

weigh the evidence or substitute our judgment for that of the trial court, and

our scope of review is plenary. Id. Further, an expert’s opinion, “rendered

to a reasonable degree of professional certainty, is itself evidence.”    Id.

(emphasis in original).

      Instantly, Appellant argues that the trial court improperly determined

that he was an SVP, specifically disputing the determination of the

Commonwealth’s expert from the Sexual Offenders Assessment Board

(SOAB) that Appellant was likely to reoffend. In particular, Appellant posits

as follows.

                     This appeal will require the Court to ascertain
              the meaning of the term “likely” in the statutory
              definition. The dictionary definition of “likely” is
              “highly probable.” The SOAB employs an approach
              whereby “likely” means simply probable at most.

                     [Appellant] maintains that the statutory
              definition of “likely” is “highly probable,” and that
              such a statutory conclusion can only be arrived at by
              means of an independent risk assessment.

Appellant’s Brief at 16.



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       We reject Appellant’s argument, noting that Appellant fails to cite

which dictionary he relies upon for his definition of “likely.”2   In addition,

bearing in mind our standard of review as set forth above, we have reviewed

both the applicable law and certified record in reaching our conclusion that

Appellant’s argument is without merit. Notably, the trial court observed that

“the risk of re-offending is merely a factor to be considered in making an

SVP determination, and not an independent element.” Trial Court Opinion,

1/4/16, at 8; accord Stephens, supra at 1039. Upon careful review, we

conclude the trial court’s thorough and adept January 4, 2016 opinion is

dispositive in this appeal, such that we adopt it as our own.3 Our adoption

of the trial court opinion is further supported by our desire to attempt to

protect the privacy of the victim and the victim’s family.      Accordingly, in

adopting the January 4, 2016 trial court opinion as our own, we have

redacted the names and initials of the victim and the victim’s family, and

____________________________________________


2
   Appellant’s failure to cite to supporting authority can result in waiver.
Sackett v. Nationwide Mut. Ins. Co., 4 A.3d 637, 641 (Pa. Super. 2010)
(finding appellant’s issue waived due to failure to cite legal authority in
support of claim), appeal denied, 34 A.3d 83 (Pa. 2011); see also Samuel–
Bassett v. Kia Motors Am., Inc., 34 A.3d 1, 29 (Pa. 2011) (holding that a
party’s failure to develop a claim in any meaningful fashion in its appellate
brief is a sufficient basis in itself to reject the argument), cert. denied, Kia
Motors Am., Inc. v. Samuel–Bassett, 133 S. Ct. 51 (2012).
3
 We note that the trial court thoughtfully addressed the testimony of both
experts: the Commonwealth’s expert, Dr. Robert Stein, the SOAB member
who assessed Appellant; and Appellant’s expert, Dr. Timothy Foley.




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J-S50036-16


instruct the trial court and parties to do so in the event of future

proceedings. We further direct the Prothonotary to seal the record.

     Judgment of sentence affirmed. Record sealed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/2016




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