J-S04012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MICHAEL YOUNG,

                            Appellant                 No. 932 EDA 2016


           Appeal from the Judgment of Sentence January 22, 2016
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0004285-2015


BEFORE: SHOGAN and OTT, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                            FILED MARCH 13, 2017

       Appellant, Michael Young, appeals from the judgment of sentence

entered on January 22, 2016, as made final by the order determining him to

be a sexually violent predator (“SVP”) entered on February 22, 2016. We

affirm.

       The trial court summarized the history of this case as follows:

       FACTUAL HISTORY:

             The basis for the Appellant’s charges stemmed from an
       incident that occurred on March 16, 2015, when the police were
       called to a home in Upper Darby Township, Delaware County,
       PA. The Victim’s Mother reported to police that she had just
       witnessed Appellant at the foot of her 16-year-old daughter’s
       bed rubbing his hand on the Victim’s rectum and vagina over her
       clothing. At the time of the incident, the Victim’s Mother was
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     Appellant’s girlfriend. The Victim stated that the Appellant
     sexually assaulted her numerous times in the past, when he
     would come into her bedroom at night, touch her breasts and
     vagina and expose his penis to her.

     PROCEDURAL HISTORY:

           On September 1, 2015, David Iannucci, Esquire, Assistant
     Public Defender, entered his appearance on behalf of the
     Appellant. On September 14, 2015, the Appellant entered a
     negotiated guilty plea to Indecent Assault-Person Unconscious.
     On January 22, 2016, following the SVP Hearing, the Appellant
     was sentenced pursuant to the recommended sentence offered
     by the Commonwealth: Count 1, Indecent Assault, time served
     to 12 months, and four years County probation, with a lifetime
     registration requirement. On January 25, 2016, an Order and
     Findings were filed by the Court. On February 1, 2016, the
     Appellant filed a “Motion for Reconsideration”. On February 19,
     2016, the Court issued a supplemental Order with additional
     Findings determining that Appellant is a[n] SVP. [The Order was
     entered on the trial court’s docket on February 22, 2016.] On
     March 18, 2016, the Appellant filed a timely Notice of Appeal.

                                  ***

     The Sexually Violent Predator Hearing:

           After Appellant’s conviction, this Court, pursuant to the
     provisions of 42 Pa.C.S.§ 9799.24, ordered Appellant be
     assessed by the Pennsylvania Sexual Offenders Assessment
     Board (SOAB) to determine if Appellant met the criteria set forth
     in the law for a Sexually Violent Predator. Upon receipt of the
     Order from the Court, the Board designated Board member
     Melanie Cerone, Ph.D., a licensed psychologist, to make the
     assessment of Appellant to determine whether he is a Sexually
     Violent Predator.

           Dr. Cerone completed a written report and submitted
     findings to the Court. She outlined the facts she considered
     relevant to each factor, as more fully set forth in her written
     report. After review of the Board’s report, a Hearing was held on
     January 22, 2016, to assist the Court in making an accurate
     determination as to whether Appellant should be deemed a
     Sexually Violent Predator. Dr. Cerone’s Report was admitted

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     into evidence without objection as Commonwealth’s Exhibit, C-1
     at the SVP Hearing held January 22, 2016. (N.T. 1/22/16 p.24).
     This was uncontroverted evidence, as the Appellant did not
     produce any witnesses at the SVP Hearing.

           In preparation for her report, Dr. Cerone reviewed inter
     alia: the S.O.A.B. (sexual offenders assessment board)
     investigator’s report, police report, arrest report, letter from
     victim’s mother, affidavit, complaint and Appellant’s criminal
     history. Dr. Cerone reported that she did not interview the
     Appellant. (See Commonwealth’s Exhibit, C-1). Dr. Cerone’s
     report and testimony included the following.

          1. The Appellant has an extensive criminal history
          including violating state parole. Appellant’s criminal
          history is reflective of his antisocial nature. He has
          convictions for inter alia: Burglary, Aggravated
          Assault, Terroristic Threats, Possession of an
          Instrument of Crime (Firearm), Theft by Unlawful
          Taking, Resisting Arrest and Receiving Stolen
          Property, Simple Assault, and Terroristic Threat1. A
          number of these offenses were committed while he
          was on probation. The totality indicates antisocial
          behavior. Further, the multiple criminal offenses go
          toward a mental abnormality.
                1
                    1995 and 1999.

          2. Dr. Cerone determined that the Appellant’s acts
          were predatory. In the instant offense, the Appellant
          entered the young victim’s bedroom while she was
          sleeping, rubbed her rectum and vagina over her
          clothes. The Appellant exploited the victim for his
          own sexual gratification. Dr. Cerone opined that the
          Appellant has established a pattern of predatory
          offending and his behavior meets the statutory
          definition of predatory behavior.

          3. Dr. Cerone also reported: “According to the
          Childline report pertaining to the instant offense, the
          victim related that a few days prior to the instant
          offense, Appellant came into her bedroom while she
          was asleep.       The victim awoke to Appellant
          attempting to remove her shorts. She stated that

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          his penis was exposed. She reported that Appellant
          did not say anything to her and left the room when
          she woke up.”      (Dr. Cerone’s Report p.3).   As
          previously noted, Dr. Cerone’s Report was admitted
          into evidence as C-1 and [Appellant] had no
          objection to the admission of the Report.

          4. Dr. Cerone’s report, Commonwealth’s Exhibit, C-1,
          evidenced her determination that Appellant is a
          Sexually Violent Predator after taking into account
          such factors that are provided in 42 Pa.C.S.
          §9799.24(b). See, 42 Pa.C.S. §9799.10 et. seq.,
          Dr. Cerone determined that the Appellant met the
          statutory definition of a Sexually Violent Predator.
          Dr. Cerone concluded: “it is this Board Member’s
          professional opinion within a reasonable degree of
          professional certainty that Appellant meets the
          criteria to be classified as a Sexually Violent Predator
          under the Act.[”] (C-1 p.11); (N.T. 1/22/16 p.23).

          5. The Commonwealth proved by clear and
          convincing evidence that Appellant suffers from a
          mental abnormality or personality disorder that
          makes Appellant likely to engage in predatory
          sexually violent offenses. The evidence confirms
          proof of a mental defect or personal disorder, which
          is an indication of Appellant’s further dangerousness.

          6. The credible testimony confirmed the following:

                a. Records indicate that the Appellant’s instant
                offense involved one female child victim.

                b. The Appellant did not exceed the means
                necessary to achieve the offense.

                c. The Appellant entered the victim’s bedroom
                while she was sleeping, rubbed his hand on her
                rectum and vagina, over her clothing. The
                Appellant exploited the victim for his own
                sexual gratification.

                d. The Appellant was 46 at the time of the
                instant offense. His age compared to the age

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               of his victim (16) is consistent        with   an
               antisocial pattern of behavior.

               e. Dr. Cerone reported that the Appellant met
               DSM-5 diagnostic criteria for Antisocial
               Personality Disorder.     The Appellant has
               demonstrated significant antisocial behavior as
               an adult. He has a history of multiple arrests
               and convictions for a variety of criminal
               offenses. Further, the Appellant has failed to
               profit from his experiences of being arrested
               and sanctioned for his antisocial behavior, and
               has responded poorly to parole supervision.

               f. It is Dr. Cerone’s clinical opinion that the
               Appellant has followed antisocial pathways to
               sexual offending. Records indicate that the
               Appellant has sexually abused a child victim
               while she was sleeping. It is apparent that his
               Antisocial Personality Disorder overrode his
               judgment and behavioral control.           The
               Appellant’s     behavior       is   associated
               significantly     with      sexual     offense
               recidivism. (N.T. 1/22/16 p.21).

               g. It is Dr. Cerone’s professional opinion within
               a reasonable degree of professional certainty
               that the Appellant suffers from a Mental
               Abnormality/Personality Disorder as defined in
               the Act. She testified at the SVP Hearing: “...I
               believe he has an Anti-Social Personality
               Disorder” (N.T. 1/22/16 p.21).

               h. In addition, it is Dr. Cerone’s opinion, to a
               reasonable degree of professional certainty,
               that the Appellant currently meets the criteria
               set forth in the law for Sexually Violent
               Predator. (N.T. 1/22/16 p.23).

          7. Dr. Cerone’s testimony was so clear, direct,
          weighty and convincing to demonstrate that
          Appellant suffers from a mental abnormality and
          mental disorder or personality disorder that makes


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            him likely to engage in predatory sexual violent
            offenses.
            After the Hearing, the Court, based on all the
            evidence submitted at the Hearing, the Board’s
            assessment, and the Court’s independent review,
            concluded that Appellant met the criteria and shall
            be classified as a Sexually Violent Predator. The
            Commonwealth established by clear and convincing
            evidence that Appellant is a Sexually Violent
            Predator. 42 Pa.C.S. §9799.24.

Trial Court Opinion, 6/14/16, at 1-5 (emphasis in original). Both Appellant

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

      Appellant presents the following issue for our review:

      I) Whether the Commonwealth failed to present at the SVP
      hearing held on January 22, 2016[,] clear and convincing
      evidence sufficient to support the determination that [Appellant]
      should be classified as a sexually violent predator where the
      testimony and opinion of the Commonwealth’s expert, together
      with [Appellant’s] history of record, did not demonstrate that it
      was likely that [Appellant] would engage in sexually violent
      offenses in the future.

Appellant’s Brief at 7 (full capitalization removed).

      In his sole issue, Appellant challenges his classification as an SVP.

Appellant’s Brief at 11-16. Appellant alleges the evidence presented at the

SVP hearing was insufficient to support the trial court’s conclusion.   Id. at

11-12. Appellant claims that the expert opinion that Appellant was likely to

reoffend was improperly based upon Appellant’s prior criminal record, which

contained no instances of sexual offenses.          Id. at 13-14.   Appellant

concludes the trial court erred in ruling the Commonwealth demonstrated by

clear and convincing evidence that he is an SVP. Id. at 16.


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      An SVP is defined as:

      an individual convicted of [a sexually violent offense as set forth
      in 42 Pa.C.S. section 9799.14 (relating to sexual offenses and
      tier system) and who], is determined to be a sexually violent
      predator under [42 Pa.C.S.] section 9799.24 (relating to
      assessments) due to a mental abnormality or personality
      disorder that makes a person likely to engage in predatory
      sexually violent offenses.

42 Pa.C.S. § 9799.12. A “mental abnormality” is 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.   “Predatory” conduct is “an act

directed at a stranger or at a person with whom a relationship has been

instituted, established, maintained, or promoted, in whole or in part, in order

to facilitate or support victimization.” Id. 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).

However, the risk of reoffending is but one factor to be considered when

making    an    assessment;    it   is   not   an   “independent     element.”

Commonwealth v. Morgan, 16 A.3d 1165, 1170–1172 (Pa. Super. 2011)

(citations omitted).

      When the defendant is convicted of an offense listed in 42 Pa.C.S. §

9799.14, the trial court orders the S.O.A.B. to evaluate whether to


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recommend classifying the defendant as an SVP.          Commonwealth v.

Hollingshead, 111 A.3d 186, 189 (Pa. Super. 2015). The evaluator whom

the Board selects to perform the assessment must weigh the following

fifteen 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; the defendant’s

relationship with the victim; the victim’s age; whether the instant offense

included a display of unusual cruelty by the defendant during the

commission of the offense; the victim’s mental capacity; the defendant’s

prior criminal record; whether the defendant completed any prior sentences;

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. § 9799.24(b) (setting forth assessment

factors).   It is not necessary for all factors, or any particular number of

them, to be present to support an SVP designation.      Commonwealth v.

Feucht, 955 A.2d 377, 381 (Pa. Super. 2008).

      The Board must submit its written assessment to the district attorney,

42 Pa.C.S. § 9799.24(c), who then files a praecipe to schedule an SVP

hearing. 42 Pa.C.S. § 9799.24(e)(1). The Commonwealth has the burden


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at the hearing of proving by clear and convincing evidence that the

defendant is an SVP.        42 Pa.C.S. § 9799.24(e)(3).         The Commonwealth

meets its burden by submitting evidence that is “so clear, direct, weighty,

and convincing as to enable the [trier of fact] to come to a clear conviction,

without   hesitancy,   of    the   truth   of   the   precise    facts   at   issue.”

Commonwealth v. Meals, 912 A.2d 213, 219 (Pa. 2006).

      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 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.

Hollingshead, 111 A.3d at 189.

      In addressing Appellant’s issue, the trial court opined as follows:

            The issue raised by the Appellant for review presents a
      challenge to this Court’s order finding him a Sexually Violent
      Predator. On January 22, 2016, a Hearing was held stemming
      from a praecipe filed by the Assistant District Attorney for the
      Commonwealth, which was based upon the evaluation of Dr.
      Melanie Cerone, Ph.D., member of the Pennsylvania Sexual
      Offenders Assessment Board. The Court issued an order based
      upon the Sexual Offenders Assessment Board’s determination
      and the Hearing during which Dr. Cerone testified. The Court
      determined that Appellant had met the criteria established in 42
      Pa.C.S. § 9799.24. The Commonwealth established by clear and
      convincing evidence that the Appellant suffers from a mental
      abnormality/personality disorder that makes him likely to
      engage in predatory sexual offenses.




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            Dr. Cerone testified that Appellant meets the statutory
     definition of an SVP, because: (1) he has been convicted of a
     sexually violent offense, as set forth in SORNA Section 42
     Pa.C.S. § 9799.14(b); and (2) he suffers from a personality
     disorder, namely Anti-Social Personality Disorder, that makes
     him likely to engage in predatory sexually violent offenses within
     the meaning of SORNA, 42 Pa.C.S. § 9799.12. (N.T. 1/22/16
     p.21).

            As to the first prong, Appellant has been convicted of a
     sexually violent offense. Sexual assaults on children are, by
     definition, “sexually violent.” The term sexually violent predator
     is a legal term which basically subsumes the idea that a sexual
     violation is always violent. Commonwealth v. Prendes, 2014 Pa.
     Super. 151, 97 A.3d 337, 348, appeal denied, 105 A.3d 736 (Pa.
     2014).

           As to the second prong, Dr. Cerone concluded that
     Appellant suffers from Anti-Social Personality Disorder. She
     explained that Anti-Personality Disorder is one of the two major
     pathways to reoffending (the other being some form of
     persistent pedophilic interest that lasted more than six months -
     not present here). She opined:

           despite his-as I said, his past experience of being
           arrested, and sanctioned, and incarcerated, and
           supervised. He sexually abused the victim to gratify
           his own needs at the expense of the victim’s safety
           and well-being.      So I believe this is sufficient
           evidence of a condition that overrode his control, and
           likelihood of reoffending. Again, the two pathways,
           chronic anti-sociality and sexual deviancy.        And
           certainly, having this anti-sociality has been shown
           to be a significant predictor of sexual offense
           recidivism. And this is relevant for Mr. Young.

           Q. And that’s the reason why...that you’ll make the
           diagnosis that he’s likely to reoffend-

           A. Yes.   That this-because of that diagnosis, yes.
           Yes.

     (N.T. 1/22/16 pp.21-22). Dr. Cerone then testified as to what
     predatory behavior is generally and what specifically Mr. Young

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      did that satisfied this pathway. (N.T. 1/22/16 p.23). She
      concluded that the fact that he has a specific, congenital disorder
      and has engaged in predatory behavior is what makes him more
      likely to reoffend than someone that has no disorder.

           Therefore, the Court found          that the Appellant was a
      Sexually Violent Predator under 42      Pa.C.S. §9799.24(e)(4). On
      January 22, 2016, [the trial] court     issued extensive Findings of
      Fact and supplemented the Order          with additional Findings on
      February 19, 2016. . . .

Trial Court Opinion, 6/14/16, at 5-7.

      Our review of the record reflects that at Appellant’s SVP hearing the

Commonwealth presented the eleven-page expert report of Dr. Melanie

Cerone, who opined that Appellant is an SVP based upon various section

9799.24 factors. N.T., 1/22/16, at 10-11, 24. We have carefully reviewed

the evidence, including the transcript from the SVP hearing, Dr. Cerone’s

report, the trial court’s SVP order, and the thorough opinion drafted by the

trial court.   Of particular note is the following testimony offered by Dr.

Cerone regarding Appellant’s predatory behavior:

      Q     So what goes into determining that, and I guess before
      your answer, is it simply because they’re convicted of sex
      offenses, that they meet that prong?

      A     No. The Statute defines predatory as an act directed at a
      stranger or at a person with whom a relationship’s been
      established, or initiated, maintained, promoted, in whole or in
      part, for the purpose of victimization, to facilitate victimization.
      So, no, simply because somebody has been convicted of a sexual
      offense, does not necessarily mean that they are going to meet
      that predatory prong. And I have had cases where I have found
      that the individual did not engage in predatory behavior.

      Q     What was, in this particular case, why did [Appellant] meet
      the predatory prong?

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      A     In this case, [Appellant] had access to the victim through
      his relationship with the victim’s mother. He was an authority
      figure. He was residing with the victim. He took advantage of
      the fact that the victim was sleeping. There -- in the records it
      indicated that while she was sleeping, he entered her bedroom.
      He touched her genitalia, attempted to remove her shorts,
      exposed his penis to the victim.       These behaviors are all
      predatory behaviors, the exploitive nature, he took advantage of
      the victim. According to the victim, this occurred on multiple
      occasions in the past. [T]he victim reported that the night prior
      to the instant offense, she awoke to [Appellant] exposing his
      penis to her, and attempting to remove her shorts. And those
      behaviors, and in my mind, meet that Statute.

N.T., 1/22/16, at 22-23.

      We agree with the trial court that the Commonwealth provided clear

and convincing evidence to determine that Appellant is an SVP. Therefore,

Appellant’s claim to the contrary fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/2017




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