J-S08008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

MATTHEW ALAN MEJIA

                         Appellant                   No. 246 WDA 2016


     Appeal from the Judgment of Sentence dated December 17, 2015
             In the Court of Common Pleas of Venango County
                    Criminal Division at No(s): 483-2014

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.

MEMORANDUM BY SOLANO, J.:                             FILED JUNE 07, 2017

      Appellant Matthew Alan Mejia appeals from the portion of his judgment

of sentence in which the trial court classified him as a sexually violent

predator (“SVP”) under the Sex Offender Registration and Notification Act

(“SORNA”), 42 Pa.C.S. §§ 9799.10-9799.41. After careful review, we affirm.

      The relevant factual and procedural history has been fully recounted

by the trial court, and we have no reason to restate it. In short, Appellant,

who was thirty years old at the time, repeatedly touched the buttocks of his

sixteen-year-old niece, “pushed her on[to] a bed, made sexual remarks to

her, and kissed and touched her vaginal area over her pants.” Trial Ct. Op.,

4/29/15, at 1. For this, Appellant pleaded guilty to one count of corruption of
J-S08008-17


a minor,1 triggering an SVP evaluation. Appellant also pleaded guilty at

another docket number to corruption of a minor2 for having intercourse with

the victim’s then seventeen-year-old sister when Appellant was twenty-

nine.3 This latter conviction did not trigger an SVP evaluation and is not

before us on appeal, but the facts relating to this conviction were considered

by the Sexual Offenders Assessment Board and by the trial court when

making the SVP determination in the instant case.

        Appellant raises a single issue for our review: “Whether or not the

Commonwealth met its burden of proof by clear and convincing evidence

that the Appellant is a sexually violent predator as defined by statute?”

Appellant’s Brief at 4.

        Our standard of review is well-settled:

           We do not weigh the evidence presented to the sentencing
           court and do not make credibility determinations. Instead,
           we view all the evidence and its reasonable inferences in a
           light most favorable to the Commonwealth. We will disturb
           an SVP designation only if the Commonwealth did not
           present clear and convincing evidence to enable the court
           to find each element required by the SVP statutes.

Commonwealth v. Feucht, 955 A.2d 377, 382 (Pa. Super. 2008) (citations

omitted), appeal denied, 963 A.2d 467 (Pa. 2008). “The standard of proof

____________________________________________
1
    18 Pa.C.S. § 6301(a)(1)(ii).
2
    18 Pa.C.S. § 6301(a)(1)(i).
3
  The trial court’s Pa.R.A.P. 1925(a) opinion incorrectly recounts that this
offense took place over the course of three to four years, rather than two
months.


                                           -2-
J-S08008-17


governing the determination of SVP status, i.e., ‘clear and convincing

evidence,’ has been described as an ‘intermediate’ test, which is more

exacting than a preponderance of the evidence test, but less exacting than

proof beyond a reasonable doubt.” Commonwealth v. Meals, 912 A.2d

213, 219 (Pa. 2006).

       Appellant complains that the Commonwealth’s expert witness testified

that Appellant met “the diagnostic criteria for unspecified paraphilic disorder

in the DSM 5,”4 but never testified that Appellant actually suffered from

unspecified paraphilic disorder. Appellant’s Brief at 10. According to

Appellant, the expert witness testified that it is possible to meet the

diagnostic criteria for a condition but not suffer from that condition. Id.

Appellant argues that the court therefore erred in concluding that because

Appellant meets the diagnostic criteria for paraphilia he has a mental

abnormality. Id. Appellant also complains that the trial court did not address

Appellant’s propensity to reoffend. Id. at 11.

       Under SORNA, a person may be designated as an SVP because of “a

mental abnormality or personality disorder that makes the individual likely to
____________________________________________
4
  “DSM 5” refers to the fifth edition of the DIAGNOSTIC AND STATISTICAL MANUAL
OF  MENTAL DISORDERS. We have described the DSM as a “categorical
classification system that divides mental disorders into types based on
criteria sets with defining features” and have cited experts’ opinions that
“the DSM is an authoritative compilation of information about mental
disorders and represents the best consensus of the psychiatric profession on
how to diagnose mental disorders.” See Commonwealth v. Hollingshead,
111 A.3d 186, 190 n.4 (Pa. Super. 2015) (citation omitted), appeal denied,
125 A.3d 1199 (Pa. 2015).


                                           -3-
J-S08008-17


engage in predatory sexually violent offenses.” 42 Pa.C.S. § 9799.12.5 While

the court must find that a defendant possesses such a mental abnormality

by clear and convincing evidence, the defendant need not have any medical

diagnosis     of   a   specific    psychological   or   psychiatric   illness.   See

Commonwealth v. Dengler, 890 A.2d 372, 383 (Pa. 2005) (“The statute

does not require proof of a standard of diagnosis that is commonly found

and/or accepted in a mental health diagnostic paradigm”). Nor does an SVP

assessment require a court to base its determination solely on an expert’s

opinion of a defendant’s risk of reoffending. See Hollingshead, 111 A.3d at

190 (finding that the defense expert’s focus on risk of recidivism was

misplaced because proof of “the risk of re-offending is but one factor to be

considered when making an assessment; it is not an independent element”

(citation omitted)). Moreover, as an expert’s diagnosis comprises evidence in

and of itself, arguments that an expert’s findings are “not fully explained,

d[o] not square with accepted analyses of the disorder, or [are] simply

erroneous,” go to the weight, and not the sufficiency, of the evidence.

Meals, 912 A.2d at 223-24.

____________________________________________
5
  A “mental abnormality” is defined 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.” 42 Pa.C.S. § 9799.12. “Predatory” is defined 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.


                                           -4-
J-S08008-17


        After thoroughly reviewing the record, the briefs of the parties, and

the applicable law, we conclude that the well-reasoned opinion of the

Honorable Robert L. Boyer comprehensively sets forth the clear and

convincing evidence upon which the trial court relied when adjudicating

Appellant    an      SVP.   See   Trial   Ct.    Op.   at   3-4,   8-14   (finding   (1)

Commonwealth’s expert witness testified that (a) Appellant suffered from

unspecified paraphilic disorder6 based on Appellant’s relationship to his

victims and the physical nature of the underlying offense, and (b) Appellant

engaged in predatory behavior based on “the maintenance or promotion of
____________________________________________
6
    We note that the Commonwealth’s expert witness testified as follows:

           [Appellant’s counsel]: And you would agree that it’s
           possible to meet what would be known as a diagnostic
           criteria for paraphilia, but not actually suffer from the
           condition correct?

           A: Yes.

           [Appellant’s counsel]: Alright and in this case you
           determined that [Appellant] meets the criteria in the DSM,
           correct?

           A: Yes.

           [Appellant’s counsel]: And based on him meeting the
           criteria, you then diagnosed him as actually suffering
           from it, is that right?

           A: I find that he does meet the criteria, yes.

N.T., 12/17/15, at 23-24 (emphasis added). This testimony belies
Appellant’s claim that the Commonwealth’s expert did not testify that
Appellant suffers from paraphilia.



                                           -5-
J-S08008-17


multiple children, including the first victim being subjected to a relationship

escalating to sexual intercourse”; (2) the Commonwealth’s expert witness

examined whether Appellant was at risk regarding re-offense; and (3) the

Commonwealth’s expert witness was credible). Accordingly, we affirm on the

basis of the trial court’s opinion. Because we do so, we instruct the parties to

attach a copy of the trial court’s April 29, 2015 opinion to any future

pleadings that reference this Court’s decision.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/7/2017




                                     -6-
                                                                                                  Circulated 05/12/2017   05:14 PM
,1•




               IN THE COURT OF COMMON PLEAS OF VENANGO COUNTY, PENNYSLV ANIA

          COMMONWEALTH OF PENNSYLVANIA

                                                                            CR. No. 483-2014
          v.

          MATTHEW ALAN MEJIA,
               Defendant
                                                        r .~ ..·•




                                                 OPINION OF COURT



          Statement of En-ors Complained of on Appeal, 1 filed in accordance with Pa. R.A.P. 1925. Pursuant

          to that same rule, the Court issues the following Opinion in support of its previous decision.

                                                   Factual Background

                 The case stems from a sexual encounter between Defendant and one of his nieces, leading

          to two separate criminal cases, the above-captioned matter and criminal proceedings at CR. No.

          603-2014.2 In August 2014, the minor victim reported that her uncle, Defendant, while babysitting,

      pushed her on a bed, made sexual remarks to her, and kissed and touched her vaginal area over her

      pants. Additionally, Defendant had touched the victim's buttocks on multiple occasions walking

      through the house, The victim reported these actions and comments made her feel frightened. This

      report led to the criminal charges at CR. No. 483-2014, the case on appeal.

                 The actions leading to the charges at CR. No. 603-2014 are relevant in that they are

      factually similar and weigh in on the SORNA evaluation prepared by the Pennsylvania State

      Offenders Assessment Board ("SOAB") and Defendant's                     expert witness. At CR. No. 603,



      1
        Defendant's pleading was actually titled "Concise Statement of Matters Complained of on Appeal;" however, the
      court notes that the Pennsylvania Supreme Court by its Order dated May 10, 2007, changed the title of Pa.R.A.P.
      1925 to "Concise Statement of Errors Complained ofon Appeal". In re Order Adopting Amendments to Pa.R.A.P.
      1925 (May 10, 2007).
      2
        While involving another of Defendant's nieces, the sexual encounters at CR. No. 603-2014 did not trigger SORNA
      evaluation.

                                                                    1
Defendant was charged and plead guilty to having sexual intercourse with another of his nieces.

According to the affidavit of probable cause in that case, over a period of three to four years,

Defendant kissed the victim, then later kissed her ears, touched her leg, and culminated in sexual

intercourse, despite the victim saying they would get in trouble because Defendant was her uncle.

These encounters were uncovered during the investigation of the actions leading to the current

criminal proceedings at CR. No. 483-2014.

                                       Procedural History

       Defendant entered a guilty plea on December 15, 2014, in both the above-captioned case

and the case at CR. No. 603-2014. The guilty plea included a designation under the Sex Offender

Registration and Notification Act ("SORNA"). After several continuances related to Defendant's

attempt to procure an expert in the matter, the SORNA hearing was held December 17, 2015.

Defendant was found to be a sexually violent predator ("SVP"), and was sentenced on the same

day. Defendant was sentenced to six (6) to twenty-four (24) months less a day in county jail,

followed by five (5) years probation, on this case and the case at CR. No. 603-2014.

       On December 23, 2015, Defendant filed a Post-Sentence Motion contesting the Court's

determination of Defendant to be an SVP. The motion was denied. Subsequently, Defendant

appealed to the Superior Court, with the Notice of Appeal being filed February 17, 2016. After

this Court issued a Concise Statement Order under Pa. R.A.P. 1925, Defendant timely filed his

Concise Statement of Errors Complained of on Appeal March 4, 2016.

       On appeal, Defendant charges eight points of error by the trial court:
           1. The trial court erred by finding the evidence proved by clear and
              convincing evidence that the defendant is a sexually violent predator
              as defined in Title 42 Section 9799.12.
           2. The evidence presented was insufficient to establish that the
              defendant is a sexually violent predator as defined in Title 42
              Section 9799.12

                                                2
            3. The finding by the court that the defendant is a sexually violent
               predator as defined in Title 42 Section 9799.12 was against the
               weight of the evidence.

            4. The testimony by the defendant's expert should have been given
               more weight because he had the opportunity to review more
               information than the Commonwealth expert. He opined the
               defendant minimally met the diagnostic criteria for Paraphilia but
               stated that he did not believe the defendant suffered from that
               abnormality. He further opined the defendant was a very low risk to
               reoffend and would only need approximately 6 months of
               counseling.

            5. The court erred when it stated that the defendants' expert's
               testimony made out that the defendant was a sexually violent
               predator as defined in Title 42 Section 9799.12.

            6. The court erred when it stated that if the defendant met the
               diagnostic criteria for paraphilia then the defendant suffered from
               paraphilia even if the clinician felt the defendant did not suffer from
               paraphilia.

            7. The court erred when it stated that regardless of how low the risk of
               reoffending by the defendant, that any risk of reoffending was
               sufficient to meet the definition of a sexually violent predator as
               defined in Title 42 Section 9799.12

            8. It is clear the court's misconception of the law affected its ultimate
               ruling that the defendant was a sexually violent predator as defined
               in Title 42 Section 9799.12.
       During the December 17, 2015 SORNA hearing, the Court received the testimony of Ms.

Brenda Manno, M.S.W., L.S.W., a member of the Pennsylvania Sexual Offenders Assessment

Board and licensed clinical social worker, and testified as an expert in the field of treatment of sex

offenders. The Court also received testimony from Mr. Steven J. Reilly, MA, a licensed clinical

psychologist, and testified as an expert in forensic psychology.

       Ms. Manno testified that in her opinion, Defendant met the diagnostic criteria to be

determined a sexually violent predator. While Ms. Manno was not afforded the opportunity to

interview Defendant, she testified that the interview was not necessary, and that the record provides


                                                  3
ample information for making her determination. Transcript of SO RNA Hearing, ("Transcript"),

pp 8-9, 1121-6.Ms. Manno discussed each of the factors listed in 42 Pa. C.S.A. § 9799.24(b), and

how those factors were relevant in the instant case. Some factors, such as whether Defendant used

excessive means to achieve the offense and whether Defendant displayed unusual cruelty, were

not present and worked in Defendant's favor. However, other factors were present, such as the

relationship (uncle-niece) between Defendant and his victims and the physical nature of the

offense. Using these factors, Ms. Manno testified that she diagnosed Defendant with unspecified

paraphilic disorder under the DSM-5.

       Unspecified paraphilic disorder would qualify as the mental defect or personality order

under the first prong of the SVP statutory definition, as Ms. Manno testified. She then found there

was maintenance or promotion of multiple children, including the first victim being subjected to a

relationship escalating to sexual intercourse. Ms. Manno testified this would qualify under the

second prong of the SVP definition, and therefore she came to a conclusion within a reasonable

degree of professional certainty that Mr. Mejia met the "criteria to be deemed a sexually violent

predator under statute." Transcript, p 18, 1115-17. Ms. Manno also addressed recidivism, stating

that while the Static-99R is used for treatment and supervision purposes, it is not used by the

SOAB, and that the statute directs the SOAB member to consider risk of recidivism as one of the

factors. On cross examination, Ms. Manno testified that she did believe Defendant was a risk to

reoffend. Jd. at p 28, 119-23. Summarizing her testimony, Defendant met the diagnostic criteria of

a sexually violent predator, and in Ms. Manna's professional opinion, Defendant should be

characterized as such.

       Mr. Reilly's testimony differed in that he did not find Defendant merited designation as a

sexually violent predator. As Defendant admits in his Concise Statement, Mr. Reilly did find that



                                                 4
Defendant minimally met the requirements                 for paraphilia, his professional         opimon is that

Defendant does not actually suffer from the mental abnormality or defect. Mr. Reilly stated he

reviewed Ms. Manno' s report, criminal complaints, police reports, and interviewed with Defendant

and others close to him. He also performed assessments using the Static-99R and the Minnesota

Sexual Offender Screening Tool ("SOST").3 He stated that he uses the Static-99R and Minnesota

SOST because it gives him "more tools in the toolbox" and gives him more things to convince him

the person is at risk. Transcript, pp 47-48, 1117-8. In other situations, he uses other tools, and what

he uses varies with the specific situation presented with the specific sex offender.

         Mr. Reilly explained the variables in the Static-99R, using it to help him identify the risk

of recidivism, but that it in recent research has "taken some real good hits as far as its reliability"

though "it is still recognized as a valuable tool." Transcript, p 48, 11 22-25. It is also helpful in

designing a treatment program. His score was a "1" on the Static-99R, which places him in a "low-

risk level" for recidivism. The Minnesota SOST is an expanded and more adaptable tool, according

to Mr. Reilly. On a range of -14 to +31, Mr. Reilly relayed Defendant scored a "-5" which is

associated with low-risk. Mr. Reilly also performed a Psychological Assessment Screener, which

is a "broad based assessment" to determine if the person suffers from any serious "access one

diagnoses;"     as Mr. Reilly described it, "a simple tool to screen for or rule out" serious

psychological     disorders. Id at p 51, 11 1-15. Mr. Reilly testified it is helpful in making his

determinations in that he would be hesitant to make a determination without knowing if the person

had a serious co-occurring disorders, such as mental illness or substance abuse.

        Based on his review of the files, the administration of the tests described above, and the

various interviews he conducted, Mr. Reilly was not in agreement with Ms. Manno that Defendant


3 The Court notes that under the testimony given by Mr. Reilly, there is some significant overlap in the factors seen
in the Static-99R and Minnesota SOST, and the statutory factors in § 9799.24(b).

                                                          5
warranted designation as a sexually violent predator. While Mr. Reilly agreed with Ms. Manno

that Defendant met the criteria under the DSM-5, he feels the DSM-5 is more of a "guide" and a

"moderately good tool." Transcript, p 52, 11 1-13. In "looking deeper into the actual diagnosis,"

Mr. Reilly found it more appropriate to "use some discretion" and look at the breakdown of the

disorder. The more he looked into the disorder, he determined Defendant was more in line with

"child abuse confirmed" which is also in the DSM-5. Though Defendant met the minimal criteria,

Mr. Reilly did not find that it was the appropriate diagnosis, under his analysis of the disorder. Id

at p 52, 11 14-19. In summation, he does not agree with Ms. Manna's recommendation that

Defendant is a sexually violent predator.

                                              Analysis

Standard to Determine Defendant as a Sexually Violent Predator

        Determination of whether or not a defendant warrants designation as a sexually violent

predator rests with the Court, and the burden falls on the Commonwealth to prove Defendant meets

the criteria.

                "To deem an individual a sexually violent predator, the
                Commonwealth must first show [the individual] 'has been convicted
                of a sexually violent offense as set forth in [section 9799.14] .... "'
                Commonwealth v. Askew, 907 A.2d 624, 629 (Pa.Super.2006),
                appeal denied, 919 A.2d 954 (Pa. 2007). See also 42 Pa.C.S.A. §
                9799.12. "Secondly, the Commonwealth must show that the
                individual has 'a mental abnormality or personality disorder that
                makes [him] likely to engage in predatory sexually violent
                offenses."' Askew, supra. When the Commonwealth meets this
                burden, the trial court then makes the final determination on the
                defendant's status as an SVP. Commonwealth v. Kopicz, 840 A.2d
                342, 351 (Pa. Super. Ct. 2003).

Com. v. Prendes, 97 A.3d 337, 357-58 (Pa. Super. Ct. 2014) appeal denied, 105 A.3d 736 (Pa.

2014) (ctiations reformatted). SVP status, therefore, does not require proof beyond a reasonable

doubt; the court decides SVP status upon a show of clear and convincing evidence that the offender

                                                  6
is, in fact, an SVP. Prendes, 97 A.3d at 358, citing Commonwealth v. Killinger, 888 A.2d 592, 600

(Pa. 2005).

       The first prong of the two-part statutory definition of a SVP requires the SOAB member to

use the factors enumerated in 42 Pa. C.S.A. § 9799.24(b).

                  ***
       (b) Assessment.-Upon receipt from the court of an order for an
             assessment, a member of the board ... shall conduct an assessment
             of the individual to determine if the individual should be classified
             as a sexually violent predator. The board shall establish standards
             for evaluations and for evaluators conducting the assessments. An
             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.

                                                      7
                (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.

                ***
42 Pa. C.S.A. § 9799.24(b). The second prong requires the SOAB member to find some sort of

predatory behavior.

        Commonwealth v. Dixon, 907 A.2d 533 (Pa. Super. Ct. 2006), is instructive for several

issues raised in Defendant's Concise Statement. In Dixon, the Superior Court characterized the

Commonwealth's expert as "testif[ying] at length regarding the statutory factors set out in Section

9795.4(b). The Exert recited each factor, described its application in Appellant's case, and noted

whether it militated in favor of or against Appellant's interest," and noted how some factors

worked against Appellant, and others in favor. The record demonstrated the expert was "thorough

and meticulous in his explanation of factors" which lead to his conclusion that Appellant suffered

from paraphilia NOS and was likely to re-offend. Id. Further, the Superior Court specifically

disagreed with Appellant's assertion that the expert's focus on the two factor test, mental

abnormality and predatory behavior, lacked an inquiry into the likelihood of reoffense.

       As is laid out above, supra, "Procedural History", Ms. Manno evaluated each of the

factors above, stating whether or not a factor was present and whether that weighed in favor or

against determination of Defendant to be a sexually violent predator. Mr. Reilly testified that under

the Static-99R and Minnesota SOST, he weighed a variety of factors, some of which were

analogous to the factors in § 9799.24(b), and that while Defendant may have met the minimal

diagnostic criteria under the DSM-5 for paraphilia, he believed that was not the proper diagnosis.

This establishes what lies at the heart of much of Defendant's appeal: the relative credibility of the

witnesses.

                                                  8
       A determination as to the credibility of witnesses is within the exclusive province of the

trier of fact who is free to believe all, part, or none of a witness' testimony. Smith v. Penbridge

Associates, Inc., 655 A.2d 1015, 1019-20 (Pa. Super. Ct. 1995). citingStahliv. Wittman, 603 A.2d

583 (Pa. Super. Ct. 1992), appeal denied, 617 A.2d 1275 (Pa. 1992). This concept is applicable

not only to "lay witnesses" but also expert witnesses.

               In determining the credibility of an expert witness and the weight of
               the testimony, the fact finder treats the expert as any other witness,
               and applies the same standards of credibility that would be applied
               to any other witness. The fact finder may believe all or none of the
               expert's testimony, or part of one expert's testimony and part of
               another expert's testimony. The fact finder should consider the
               method by which the expert reached his or her conclusion. The fact
               finder is not bound to accept the expert's testimony merely because
               it is the testimony of someone having special skill or knowledge. All
               the components that the expert considered are matters which the fact
               finder considers in determining the persuasive quality of the
               testimony. The fact finder weighs the opinions of the experts against
               one another to determine credibility and weight.

Appeal of Avco Corp., 515 A.2d 335, 338 (Pa. Cmwlth. Ct. 1986).

       In applying these standards, the Court reached the conclusion that Ms. Manno, the

Commonwealth's witness, was more credible. This was due in part to her recitation of the factors

as enumerated by statute, and general adherence to the statutory definitions, while Mr. Reilly

deviated from the statute and used different standards, such as the Static-99R and Minnesota

SOST. Additionally, much of Mr. Reilly's testimony seemed to center on the risk of recidivism,

which is only one factor in SVP analysis. See, infra, "Court Error in Finding and Weighing Risk

of Reoffending in Determination of SVP Status." Mr. Reilly did address the diagnosis under the

DSM-5, opining that while Defendant minimally met the diagnostic criteria for paraphilia, such a

diagnosis was not appropriate, and the more applicable diagnosis was child abuse confirmed.

However, the Court is of the opinion that Ms. Manna's testimony was more than sufficient to

support the Court's finding that Defendant is a sexually violent predator. Her testimony is similar

                                                 9
to that as presented in Dixon, which the Superior Court found to be adequate to support a finding

that the appellant was a sexually violent predator. The Court determined Ms. Manna's testimony

to be more credible than that of Mr. Reilly, and should be given more weight than Mr. Reilly's

contrary testimony.4

Adequacy of the Evidence
        Defendant raises three issues which can broadly be described as attacking the adequacy of

the evidence at the SVP hearing. The first point argues that the Court erred in finding "clear and

convincing evidence" that Defendant is a sexually violent predator. The second point argues that

"the evidence was insufficient to establish" that Defendant warrants SVP status. Point three argues

the finding of SVP status was "against the weight of the evidence."

                The standard of proof governing the determination of SVP status,
                i.e., clear and convincing evidence, has been described as an
                intermediate test, which is more exacting than a preponderance of
                the evidence test, but less exacting than proof beyond a reasonable
                doubt .... 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 in issue.

In re R. Y., Jr.,, 957 A.2d 780, 784 (Pa. Super. Ct. 2008), quoting Commonwealth v. Meals, 912

A.2d 213, 219 (Pa. 2006).

        When challenging the sufficiency of the evidence in criminal cases the standard of review

is that we evaluate the record "in the light most favorable to the verdict winner giving the

prosecution the benefit of all reasonable inferences to be drawn from the evidence."

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). "Evidence will be deemed sufficient to

support the verdict when it establishes each material element of the crime charged and the




4The Court will refer to this section below, when the analysis of Defendant's complaints on appeal require an
explanation of the relative credibility of the witnesses.

                                                     10
commission thereof by the accused, beyond a reasonable doubt." Commonwealth v. Brewer, 876

A.2d 1029, 1032 (Pa. Super. Ct. 2005).

       Applying this standard to the instant case, the Court would apply the standard towards the

Court's determination of SVP status, as opposed to a criminal conviction. While noting that the

standard for determination of SVP status is only "clear and convincing" evidence, as opposed to

the "beyond a reasonable doubt" standard applied to criminal determinations, it is a relatively

straightforward task to test the sufficiency of the evidence in the instant case.

       Finally, a challenge that the disposition was against the weight of the evidence is narrower

than the challenge to the sufficiency of the evidence Commonwealth v. Price, 616 A.2d 681, 684

(Pa.Super.1992). A challenge to the weight of the evidence, in contrast to a challenge to the

sufficiency of the evidence, "concedes that there is sufficient evidence to sustain the verdict."

Commonwealth v. Smith, 853 A.2d 1020, 1027 (Pa. Super. Ct. 2004), citing Commonwealth v.

Bennett, 827 A.2d 469 (Pa. Super. Ct. 2003).

       These issues are resolved quite succinctly. The totality of the evidence presented at the

SORNA hearing consisted of the testimony of the relative parties' experts. These experts had

differing professional opinions on whether or not Defendant warranted SVP status; perhaps

unsurprisingly, the Commonwealth's expert testified in her opinion that Defendant did meet the

criteria for an SVP under§ 9799.24, while Defendant's expert disagreed. Essentially, the challenge

in each of these points boils down to the credibility of Ms. Manno, and how it compares to the

credibility of Mr. Reilly. Ms. Manna's testimony was thoroughly credible, and thus supported

clear and convincing evidence which was more than sufficient to establish finding Defendant to

be an SVP. Since Ms. Manna's testimony was more credible to this Court than that of Mr. Reilly,




                                                  11
the Court fails to see how SVP designation was against the weight of the evidence. Accordingly,

the Court would humbly request the Superior Court dismiss these errors as being meritless.

Relative Weight of the Expert Witnesses'             Testimony

         The fourth matter raised on appeal argues that Defendant's witness ought to have been

given more weight, because he had the chance to interview Defendant.' and Mr. Reilly opined that

though Defendant met the diagnostic criteria minimally, he did not find Defendant suffered from

a mental abnormality and was very low risk to reoffend. The Court therefore is tasked with

assessing relative credibility of the experts, sitting as the fact-finder in this hearing.

         The Court has already addressed that it finds Ms. Manna's testimony to be more credible

than the testimony of Mr. Reilly, and therefore, that determination of Defendant to be a sexually

violent predator is warranted. The Court would humbly submit this challenge to be without merit.

Court Error in Stating Mr. Reilly's Testimony Made Out that Defendant was an SVP

         Next, Defendant argues the Court erred in finding Defendant's testimony made out that

Defendant was an SVP under§ 9799.12. To the extent that the Court has stated that Defendant's

expert found Defendant to be an SVP, such a characterization would not be entirely accurate.

Instead, the Court finds that Defendant's testimony reflects that in his expert opinion, Defendant

minimally met the diagnostic criteria for paraphilia. This would be in agreement with Ms. Manno' s

assessment that Defendant met the paraphilia criteria.

         The respective experts disagree as to whether Defendant is at risk for reoffending.

Predictably, the Commonwealth's expert found a risk for reoffending, while Defendant's expert


5 The Court would note at this point it is not prepared to summarily afford defense witnesses more credibility in SVP
determinations simply by virtue of interviewing the defendant, since Defendant reserves the right to not interview
with the SOAB member conducting the review. Defendants may not game the system by ensuring their witnesses
will control by rationing their interviews. Further, Ms. Manno testified that she does not need to meet with q
defendant in order to make an SVP recommendation, and in fact does so regularly.


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thought there was only a very low risk. Again, this would be a credibility issue, with the Court

finding the Commonwealth's expert more credible.

Court's Finding that Defendant Met Diagnostic Criteria for and Suffered from Paraphilia

       Defendant contends the Court erred in stating the Defendant met the diagnostic criteria for

paraphilia, though Defendant's expert felt Defendant did not suffer from paraphilia. This again

boils down to a credibility issue, as Ms. Manno did opine that Defendant did suffer from paraphilia.

Therefore, in the disagreement between the experts, the Court was left to assess the relative

credibility, and has been stated several times in this opinion, the Court found Ms. Manno to be

more credible.

Court Error in Finding and Weighing Risk of Reoffending in Determination of SVP Status

       Defendant contends next that the Court erred in finding that any risk of reoffending was

sufficient to meet the definition of an SVP under § 9799.12. The Court finds this guidance from

the Superior Court:

                 To the extent that Appellant argues that the trial court erred as a
                 matter of law by discrediting Dr. Foley's testimony, we find that
                 argument likewise to be without merit. The trial court found Dr.
                 Foley's report to be lacking and his focus on the risk of recidivism
                 to be misplaced. This was legally correct as "the risk ofre-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, 1039 (Pa. Super. Ct. 2013) (citation omitted).

Commonwealth v. Hollingshead, 111 AJd 186, 194 (Pa. Super. Ct. 2015), appeal denied, 125

A.3d 1199 (Pa. 2015) (citations reformatted). The Superior Court has also stated

                 The precise manner of meeting this burden [opining on the
                 likelihood of reoffense] in not analyzed in terms of a strict, three-
                 prong test. Nonetheless, the Commonwealth must prove by clear
                 and convincing evidence that the statutory definition has been
                 satisfied, and the definition certainly includes an inquiry into the
                 likelihood of reoffense."

Dixon, 907 A.2d at 539.

                                                  13
        Similarly, Defendant's reliance on Defendant's expert's testimony regarding the risk of

recidivism is but one point, and even if the risk of recidivism was very low, it is but one factor.

The testimony of Ms. Manno that Defendant was at risk for reoffending further complicates

Defendant's claim. The Court finds that Ms. Manno did conduct an inquiry as to Defendant's risk

of recidivism, as required by the statute. As this Court has consistently stated it finds Ms. Manno

to be more credible in this case than Defendant's expert, the Court also would respectfully submit

this contention on appeal is also without merit.

Misapplication of Law Leading to an ImproperFinding of SVP Designation
       Defendant's final point in the Concise Statement is merely a conclusion that because of the

aforementioned errors, this Court erred in determining Defendant to be an SVP. For the reasons

stated above, this Court disagrees.

                                             Conclusion

       The majority of the issues raised on appeal stem from the Court's determination of the

relative credibility of the expert witnesses. To reiterate a final time, the Court found the testimony

of Ms. Manno to be more credible than that of Mr. Reilly. Accordingly, the Court finds no error

in the determination that Defendant is an SVP, and would respectfully submit that Defendant's

appeal is without merit.



                                                   BY THE COURT,




                                                   ROBERT L. BOYER, J.

cc:    DA
       Neil Rothschild, Esq.


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