J-S61026-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                             Appellee

                       v.

JOSEPH R. W.

                             Appellant                     No. 456 WDA 2014


         Appeal from the Judgment of Sentence of February 28, 2014
              In the Court of Common Pleas of Warren County
             Criminal Division at No.: CP-62-CR-0000048-2013


BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                                 FILED OCTOBER 08, 2014

       Joseph R. W. (“Appellant”) appeals his February 28, 2014 judgment of

sentence. In large part, we adopt the trial court’s comprehensive Pa.R.A.P.

1925(a) opinion, and we affirm.

       After the police received a report that Appellant had sexually abused

his nine-year-old daughter, M.K., Appellant was charged with involuntary

deviate sexual intercourse with a child, aggravated indecent assault,

indecent assault, and incest.1 Initially, Appellant pleaded guilty to one count

of aggravated indecent assault in exchange for the Commonwealth’s

____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
1
     18 Pa.C.S.         §§    3123(b),     3125(a)(7),    3126(a)(7),   and   4302,
respectively.
J-S61026-14



agreement to nolle prosse the remaining charges.       However, after being

assessed by the Sexual Offender Assessment Board (“the Board”) to

determine whether he met the criteria for designation as a sexually violent

predator (“SVP”) pursuant to 42 Pa.C.S. § 9799.24(a) and (b), Appellant

subsequently moved to withdraw his plea before sentencing, a motion which

the trial court granted.

      The matter then proceeded to a jury trial, after which Appellant was

convicted of all charges.   The trial court summarized the facts that the

Commonwealth presented at trial against Appellant as follows:

      Detective Anthony Chimenti of the Warren Police Department
      responded to a report from the mother of the nine year-old
      female victim, M.K., around November of 2012. On numerous
      occasions between October, 2010 and October, 2011, Appellant,
      M.K.’s biological father, abused her at a duplex that her mother
      and Appellant shared in Warren, Pennsylvania. M.K. reported
      that Appellant touched her on her chest and between her legs,
      put his mouth on her ‘chest and privates,’ and touched her with
      his tongue on her ‘privates.’ Testimony at trial indicated that,
      during at least some of the episodes of abuse, Appellant
      removed the victim’s clothes prior to abuse occurring. M.K. did
      not report the abuse because Appellant told her not to tell
      anybody about what happened, and M.K. first told her mother
      about the events following a move to Ludlow, Pennsylvania in
      October 2012. In the course of an interview with the police,
      Appellant admitted that he had touched M.K. while she was
      showering, and that the incidents involving touching had
      occurred in the bedroom he shared with the victim’s mother.
      Appellant also admitted during interviews with police that while
      the victim was naked he would touch the victim on the breast
      and vagina, and he also admitted that on at least one occasion
      he used his tongue on the victim. Pennsylvania State Trooper
      Eric Mallory, who conducted the interview, testified at trial that
      slight penetration occurred during this incident, as Appellant
      admitted to rubbing the opening of the victim’s vagina.


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Trial Court Opinion (“T.C.O.”), 5/5/2014, at 2.

      On September 10, 2013, the trial court entered an order directing the

Board to perform a second SVP assessment on Appellant. Molly Wagner, a

clinical social worker and member of the Board, performed the assessment

on Appellant.      Notably, Appellant elected not to participate in the

assessment, and did not speak with Ms. Wagner.

      On February 28, 2014, the trial court held a hearing to ascertain

whether Appellant met the criteria for an SVP designation. At the hearing,

Ms. Wagner testified for the Commonwealth.        Having reviewed all of the

pertinent and available materials and information, Ms. Wagner opined within

a reasonable degree of professional certainty that Appellant met the SVP

criteria.   Notes of Testimony (“N.T.”), 2/28/2014, at 20.       In response,

Appellant presented the testimony of licensed psychologist Steven J. Reilly.

Mr. Reilly testified that, in his expert opinion and within a reasonable degree

of professional certainty, Appellant did not meet the relevant SVP criteria.

N.T. at 36. The trial court, after hearing from and assessing the credibility

of both experts, concluded that the Commonwealth had proven by clear and

convincing evidence that Appellant was an SVP.      On the record, the court

comprehensively explained the basis for its conclusion:

      The court has considered the testimony by the two professionals
      in this matter. As [the assistant district attorney] stated, we
      have a member of [the Board] whose curriculum vitae indicates
      she exclusively works within sex offenders treatment as a
      director of the Sexual Offenders Approved Board Treatment in
      Warren, Venango, Crawford and Erie County. And in terms of
      her training, she has been a member of [the Board] since 2005.

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     That being said, we also have the information about Mr. Reilly
     who is a licensed or board certified psychologist.         He
     administered the Static-99R and the Minnesota Sexual Offenders
     Screening Tool, both that are self-reports that [Appellant]
     participated in. Unlike Ms. Wagner’s report where [Appellant]
     refused or [defense counsel] refused on his behalf, but he did
     not participate in that evaluation [sic].

     It’s clear to the Court there are two different reports from [the
     Board]. The one that, again, was only mentioned briefly was the
     former report based upon a plea which included one charge.
     After trial, [Appellant] was found guilty of four charges. So the
     information that would be included is different, because there
     are four charges that are up for consideration as opposed to the
     one when [Appellant] withdrew his plea.

     In terms of the evaluation, we’ll see what we agree upon. That
     is that both Mr. Reilly and Ms. Wagner testified that, in fact,
     [Appellant] is properly classified as someone with a diagnosis of
     pedophilia based on DSM criterion. Now, [] Mr. Reilly said he
     may not agree with the criterion, but he recognize[d] the
     criterion is one that is used, so he did not dispute the diagnosis.

     In terms of the factors, it’s clear that the factors were addressed
     in [the Board’s] assessment. We already concluded that this
     offense involved one victim, namely [Appellant’s] 9-year-old
     daughter.

     The offender did not exceed the means necessary to achieve his
     offense, but that he did exploit a trusted paternal relationship
     and exceeded access to the child within the home.

     The nature of the sexual contact with the victim included
     fondling, oral sex, digitally penetrating her vagina.

     He was the father of the victim and lived with the family at the
     time of these incidents. The incidents occurred over a period of
     seven months. It was not one incident, it was not an isolated
     incident, it was a period of seven months.

     The victim in this case is prepubescent. This age is relevant
     because, again, [Appellant] is classified with a diagnosis of
     pedophilia based upon his age.

     Whether the offense included a display of unusual cruelty by the
     offender during the commission of the crime.         There was


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     grooming and maintenance of sexual molestation so it could
     occur in the home over a period of time, it was not one event.
     Again, it appeared that he did not engage in cruelty of violence
     in the typical sense of removing the child from the home,
     kidnapping her, et cetera, were the examples, but he, in fact, did
     groom her, keep her separate from other members of the family.

     Again, there was no indication by either Mr. Reilly or by Ms.
     Wagner that the mental capacity of the victim was anything
     other than a child.

     The offender has no prior criminal record in the area of sexual
     offenses. He does have two prior charges for criminal mischief
     and violation of the Controlled Substances Act. He has never
     completed a prior sentence involving sexual offenses. He has
     completed both an ARD and a prior sentence successfully.

     He has not participated in any sexual offenders programming.
     Again, it was suggested by Ms. Wagner that the victim’s mother
     did discuss with him the opportunity to get help, and he did not
     desire to get help regarding these circumstances when she
     learned of the offense.

     In terms of his age. He is now 35 years old – or 34 and the
     victim was 9 years old at the time of the offense. There was a
     significant age disparity between the victim and her father.

     [Appellant] does not indicate that he was under the influence at
     the time of these offenses and, therefore, that’s not a relevant
     consideration. He did not make any disclosures to his expert Mr.
     Reilly that he was under the influence of anything also.

     And mental illness, mental disability or mental abnormality.
     Again, given the diagnosis that the conduct or behavior before it
     was discovered lasted at least seven months, the diagnostic
     criteria for pedophilia is met.

     In terms of the behavioral characteristics that contributed to the
     offenders’ conduct, he’s the victim’s biological father. He had a
     relationship of trust as a father, he exploited this trust in
     beginning improper sexual conduct with the child. Then he told
     the child that he would – she was threatened that she needed to
     keep this abuse a secret. And then he also attempted to pay the
     mother for her silence.




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     In terms of additional factors, it’s reasonable to consider that
     [Appellant] demonstrated sexual arousals to young children, as
     the victim in this case was 9 at the time of victimization.

     Next, the Court examines the mental personality disorder
     criteria. And by mental personality disorder, the Court , again,
     must construe this as the law has construed this [as] statutory
     criteria in that regard.    The individual has a congenital or
     acquired condition which is the impetus to the sexual offending.
     In this case, [Appellant], by clear and convincing evidence,
     meets the diagnosis criteria for pedophilia.

     Second, the individual suffers from a lifetime condition. The
     diagnostic criteria for pedophilic disorder are intended to apply
     both to individuals who freely disclose this pedophilia and to
     individuals who deny it. So again, to look at the diagnostic
     criteria, did the behavior exist for over six months? Yes. The
     testimony is uncontroverted from both Mr. Reilly and Ms.
     Wagner in that regard.

     Has the person acted on sexual acts or engaged in sexual acts?
     In this case, yes.       He acted on sexual acts and sexual
     gratification in performing sexual acts on his daughter who is the
     person at least 16 years of age and is a child at least 5 years
     younger. In this case, the child was 9, [Appellant] was in his
     30s.

     Did the violation override the individuals’ emotional or volitional
     control? Clearly, [Appellant] was aware that his behavior was
     criminal. He made multiple attempts to conceal the sexual
     urges. When he was questioned about the first act he did admit
     that he told the victim what he was doing was wrong. Yet, it
     continued for at least seven months. In terms of this behavior,
     knowing that it was wrong and criminal, his deviancy pedophilic
     arousals overrides his emotional and volitional control.

     In terms of likelihood of reoffending. There’s a question of re-
     offense. Certainly, there was a suggestion by Mr. Reilly that he
     is a low risk because he had an incest relationship. A low risk
     perhaps to society, but not a low risk to his daughter. That’s
     really the concern of the Court today.

     In terms of reoffending, there was a suggestion that sexual
     deviant pathways to sexually offending occurs by children who
     are available to be victimized. And in this case, availability to a


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      daughter living in the household certainly lends itself to the
      likelihood of reoffending.

      The statute defines [SVP] as an act with 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. In this case, we know that [Appellant] is the
      father of the victim. He had a trusted role as a father.

      In order to address the sexual relationship, he initiated the
      sexual relationship, sustained the sexual relationship for over a
      period of seven months, promoted the relationship by
      threatening the victim to keep the molestation a secret, then set
      up additional opportunities to reoffend, it wasn’t one time.
      Therefore, [Appellant’s] behavior meets the statutory definition
      of [SVP] under the Act.

      Again, on the basis of the information that was submitted and
      the uncontroverted testimony of the member of [the Board], the
      Court finds that [Appellant’s] conduct meets the definition of
      [SVP] under the Act. Violence is not required to meet this
      definition.

N.T. at 51-58. Thereafter, the trial court proceeded to sentence Appellant to

an aggregate term of two hundred and thirty months to four hundred and

sixty months in a state prison.

      On March 13, 2014, Appellant filed a notice of appeal. Upon receipt of

the notice, the trial court directed Appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On April 3,

2014, Appellant filed a timely concise statement. On May 5, 2014, the trial

court issued an opinion pursuant to Pa.R.A.P. 1925(a).

      Appellant presents the following two issues for our review:

      1. Did the Commonwealth prove all elements of the charges of
         aggravated indecent assault, indecent assault, and incest
         beyond a reasonable doubt, particularly since there was no



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         testimony or other evidence that Appellant penetrated the
         victim’s vagina or anus?

      2. Did the Commonwealth prove by clear and convincing
         evidence that Appellant is a sexually violent predator?

Brief for Appellant at 8.

      We begin with our respective standards of review for Appellant’s two

claims. With respect to a challenge to the sufficiency of the evidence, our

standard of review is as follows:

      When reviewing a challenge to the sufficiency of the evidence,
      we must determine whether, viewing all the evidence admitted
      at trial, together with all reasonable inferences therefrom, in the
      light most favorable to the Commonwealth, the trier of fact could
      have found that each element of the offense[s] charged was
      supported by evidence and inferences sufficient in law to prove
      guilt beyond a reasonable doubt. Normally, evidence is deemed
      sufficient to support the underlying convictions if:

         there is testimony offered to establish each material
         element of the crime charged and to prove commission of
         the offense by the accused beyond a reasonable doubt.
         The question of credibility is left for the jury and the
         verdict will not be disturbed if the jury determines the
         evidence is worthy of belief.

      The factfinder is free to believe all, part or none of the evidence,
      and the facts and circumstances established by the
      Commonwealth need not be absolutely incompatible with the
      defendant’s innocence.

Commonwealth v. Magliocco, 806 A.2d 1280, 1282 (Pa. Super. 2002)

(citations and internal quotation marks omitted).

      We review challenges to the sufficiency of the evidence offered by the

Commonwealth in support of an SVP designation according to the following

standards:


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     A challenge to a determination of SVP status requires us to view
     the evidence:

        [I]n the light most favorable to the Commonwealth. The
        reviewing court may not weigh the evidence or substitute
        its judgment for that of the trial court. The clear and
        convincing standard requires 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. Plucinski, 868 A.2d 20, 25 (Pa. Super.
     2005) (internal citations and quotation marks omitted). The
     scope of review is plenary. Commonwealth v. Brooks, 7 A.3d
     852 (Pa. Super. 2010).       “[A]n expert’s opinion, which is
     rendered to a reasonable degree of professional certainty, is
     itself evidence.” Commonwealth v. Fuentes, 991 A.2d 935,
     944 (Pa. Super. 2010) (en banc).

     A challenge to the sufficiency of the evidence to support an SVP
     designation requires the reviewing court to accept the
     undiminished record of the case in the light most favorable to
     the Commonwealth. Commonwealth v. Meals, 912 A.2d 213,
     218 (Pa. 2006). The reviewing court must examine all of the
     Commonwealth’s evidence without consideration of its
     admissibility. Commonwealth v. Baker, 24 A.3d 1006, 1035
     (Pa. Super. 2011). A successful sufficiency challenge can lead to
     an outright grant of relief such as a reversal of the SVP
     designation, whereas a challenge to the admissibility of the
     expert’s opinion and testimony is an evidentiary question which,
     if successful, can lead to a new SVP hearing.

Commonwealth v. Prendes, 2014 PA Super 151 at *14-15, ___ A.3d ___

(Pa. Super. 2014) (citations modified).

     We have reviewed the record, the relevant transcripts, the arguments

of the parties, and the applicable law.   Having done so, and applying the

above-quoted standards, we agree with the trial court’s learned and



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comprehensive analyses set forth in its Rule 1925(a) opinion, wherein that

court determines that Appellant is not entitled to relief on either claim.2

Hence, we adopt the trial court’s May 5, 2014 opinion as our own, and affirm

Appellant’s judgment of sentence.              A copy of the trial court’s opinion is

attached hereto for convenience.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/8/2014




____________________________________________


2
      We note that, in his brief, Appellant also challenges the sufficiency of
the evidence presented at trial to prove that he was M.K.’s biological father
for purposes of his incest conviction. See Brief for Appellant at 11-12.
However, Appellant did not raise that specific sufficiency challenge in his
Rule 1925(b) statement. Rather, in his statement, Appellant’s sufficiency
challenges related only to the proof of penetration that is required for each
crime, including incest. Consequently, his sufficiency argument relating to
his status as M.K.’s biological father is waived.             See Pa.R.A.P.
1925(b)(4)(vii); Commonwealth v. Elia, 83 A.3d 254, 263 (Pa. Super.
2013).




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