J-S60030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JAMES KRIEGNER

                            Appellant               No. 341 EDA 2015


          Appeal from the Judgment of Sentence December 19, 2014
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-CR-0002040-2014


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.:                     FILED NOVEMBER 17, 2015

        James Kriegner appeals from the judgment of sentence imposed in the

Court of Common Pleas of Bucks County after he entered a negotiated guilty

plea to charges of statutory sexual assault;1 involuntary deviate sexual

intercourse (IDSI);2 unlawful contact with a minor;3 sexual abuse of

children-photographing, filming, depicting on computer or filming sexual acts

(child pornography);4 aggravated indecent assault;5 criminal use of a

____________________________________________


1
    18 Pa.C.S. § 3122.1(b).
2
    18 Pa.C.S. § 3123(a)(7).
3
    18 Pa.C.S. § 6318(a)(1).
4
    18 Pa.C.S. § 6312(b).
5
    18 Pa.C.S. § 3125(a)(8).
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communication facility;6 corruption of minors;7 and indecent assault.8

Following his convictions, he was determined by the court to be a Sexually

Violent Predator (SVP) pursuant to the Sexual Offender Registration and

Notification Act (SORNA), 42 Pa.C.S.A. §§ 9799.10-9799.41. Upon careful

review, we affirm.

        Kriegner entered a guilty plea to the above charges on June 9, 2014.

The charges related to Kriegner’s possession of child pornography and

sexual abuse perpetrated by Kriegner against a minor girl who was his niece

by marriage.      Kriegner abused the girl, S.L., over an eight-month period

when she was fifteen years old.

        Following the entry of Kriegner’s plea, the trial court ordered that he

undergo an SVP assessment by the Sexual Offenders Assessment Board

(Board) pursuant to 42 Pa.C.S. § 9799.24. Doctor Eric Weinstein, a member

of the Board, completed the SVP assessment on August 24, 2014. Doctor

Christopher P. Lorah, a licensed psychologist, prepared a review of Dr.

Weinstein’s report at Kriegner’s behest, on October 27, 2014. On December

19, 2014, the trial court held a hearing to determine whether Kriegner was

an SVP. After consideration of competing testimony from both Dr. Weinstein


____________________________________________


6
    18 Pa.C.S. § 7512(a).
7
    18 Pa.C.S. § 6301(a)(1)(ii).
8
    18 Pa.C.S. § 3126(a)(8).



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and Dr. Lorah, the court concluded that Kriegner was an SVP. Kriegner was

sentenced to a term of 6 to 15 years’ imprisonment with a consecutive 5

year period of probation and was ordered to register as a Tier 3 offender.

Kriegner filed a timely notice of appeal, followed by a court-ordered

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

The trial court filed its Rule 1925(a) opinion on April 7, 2015.

       On appeal, Kriegner claims that the trial court erred in concluding that

he is an SVP. Specifically, Appellant presents one issue for our review:

       DID THE LOWER COURT ERR IN FINDING THAT THE
       COMMONWEALTH PRESENTED SUFFICIENT EVIDENCE THAT
       APPELLANT SUFFERS FROM A MENTAL ABNORMALITY OR
       PERSONALITY DISORDER THAT MAKES IT LIKELY THAT HE WILL
       ENGAGE IN PREDATORY SEXUALLY VIOLENT OFFENSES?

Appellant’s Brief, at 4.

       Appellant challenges the sufficiency of the evidence relating to the trial

court’s SVP status determination.      A challenge to a determination of SVP

status requires us to view the evidence presented in the light most favorable

to the Commonwealth.         Commonwealth v. Prendes, 97 A.3d 337, 355

(Pa. Super. 2014).         We may not weigh the evidence or substitute our

judgment for that of the trial court. Id. The Commonwealth must establish

SVP status by clear and convincing evidence, which 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. Id. The scope of our review is plenary. Id. at

356.

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      After conviction but before sentencing, the trial court is required to

order Board assessment of an individual convicted of a sexually violent

offense. 42 Pa.C.S. § 9799.24(a). Such assessment shall include, but not

be limited to, an examination of the following:

        (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:

          (i) The individual’s prior 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.

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42 Pa.C.S. § 9799.24(b).

       While the Board must examine all statutory factors, there is no

requirement that all of these factors or any particular number of them be

present or absent in order to support an SVP designation. Commonwealth

v. Brooks, 7 A.3d 852, 863 (Pa. Super. 2010). Rather, the question for the

SVP court is whether the Commonwealth’s evidence, including the Board’s

assessment, shows that the person convicted of a sexually violent offense

has a mental abnormality or disorder making that person likely to engage in

predatory sexually violent offenses. Id. Based on the evidence presented,

the court decides whether a defendant is to be designated an SVP and thus

made subject to SORNA’s registration requirements. Id.

       Kriegner argues that the Commonwealth failed to establish that he

suffers from a mental abnormality or personality disorder.       In support,

Kriegner argues that the Commonwealth presented no evidence related to

the diagnosis of a paraphilic9 disorder specified in the fifth edition of the

Diagnostic and Statistical Manual of Mental Disorders (DSM-V), but instead

relied on Dr. Weinstein’s hebephilia10 diagnosis.

____________________________________________


9
  “Paraphilia” is defined as a pattern of recurring sexually arousing mental
imagery or behavior that involves unusual and especially socially
unacceptable sexual practices, such as sadism or pedophilia. See Merriam-
Webster, http://www.merriam-webster.com/dictionary/paraphilia.
10
   Hebephilic disorder, as described by Dr. Weinstein, is characterized by
sexual attraction and behavior directed at adolescents. See N.T. SVP
Hearing, 12/19/14, at 15.



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      In Commonwealth v. Hollingshead, 111 A.3d 186 (Pa. Super.

2014), the appellant challenged the sufficiency of evidence provided at her

SVP hearing by arguing that a hebephilia diagnosis was insufficient to find a

mental abnormality in relation to a SVP determination. Id. at 193. Based

on our review of numerous state and federal court decisions, we held that “a

trial court may conclude, based upon the expert testimony and facts in a

given case, that a hebephilia diagnosis is sufficient to find a defendant has a

mental abnormality.” Id.

      Kriegner attempts to distinguish this case from our decision in

Hollingshead by pointing to the “fact specific determination” required of the

trial court. Appellant’s Brief, at 16. In Hollingshead, this Court noted the

diagnostic criteria for hebephilia as “attraction to young people because of

the intersection of the young person’s innocence and vulnerability, and the

emergence of secondary sexual characteristics.” 111 A.3d at 191. Kriegner

claims “there was no evidence that [he] relied upon the victim’s innocence

or vulnerability or that he was interested in the secondary sexual

characteristics of the victim” and that Dr. Weinstein diagnosed the disorder

“merely because of a sexual attraction to adolescents.” Appellant’s Brief, at

17. However, the record and opinion of the trial court belie these blanket

assertions.

      Doctor Weinstein performed an evaluation of Kriegner and testified to

a reasonable degree of professional certainty that, based on the abuse of his

15-year-old niece over the period of eight months, Kriegner met the criteria

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for “Other Specified Paraphilic Disorder, Hebephilia.”        Doctor Weinstein

further testified that this specific mental abnormality predisposes Kriegner to

engage in predatory sexually violent offenses. N.T. SVP Hearing, 12/19/14,

at 25. In support of his expert opinion, Dr. Weinstein noted that Kriegner

“actively pursued his niece and engaged in sexual contact that increased

over time.”    Id. at 19.     Doctor Weinstein also testified regarding his

consideration of the relationship of Kriegner to the victim, the age of the

victim, and child pornography found on Kriegner’s computer, in forming his

opinion that he met the criteria to be classified as an SVP. Id. at 17-20.

      Based on our review of the evidence presented by the Commonwealth

at Kriegner’s SVP hearing, including Dr. Weinstein’s testimony, we conclude

that the trial court did not err in finding, by clear and convincing evidence,

that Kriegner satisfied the criteria to be classified as an SVP.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2015




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