J-S06014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER CALCAGNI

                            Appellant                   No. 1797 EDA 2016


                       Appeal from the Order May 12, 2016
              In the Court of Common Pleas of Northampton County
               Criminal Division at No(s): CP-48-CR-0003287-2014


BEFORE: MOULTON, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY MOULTON, J.:                                FILED JULY 14, 2017

       Christopher Calcagni appeals from the May 12, 2016 order entered in

the Northampton County Court of Common Pleas classifying him as a

sexually violent predator (“SVP”) under the Sex Offender Registration and

Notification Act (“SORNA”), 42 Pa.C.S. §§ 9799.10-9799.41. We affirm.

       The trial court set forth the facts of this case as follows:
            [Calcagni] has a criminal history as far back as 1991 in
            which he perpetrated sexual offenses against numerous
            adolescents/teenage women. In 1991, [Calcagni] plead
            [sic] guilty to victimizing 5 girls ages 13, 14, 15, and 16.
            The affidavit of probable cause set forth that all five
            victims claimed that [Calcagni] had vaginal intercourse
            with them while they were placed in a juvenile facility
            known as the Children’s Home of Easton. . . . [Calcagni]
            was a youth care worker employed with the Children’s
            Home of Easton at the time of the offenses. [Calcagni]
____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
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            entered into a negotiated plea to five (5) counts of
            corruption of minors, one count for each victim.
            Apparently, there is no other information in the criminal
            records regarding the 1991 convictions.

                In this matter under appeal, [Calcagni] plead [sic]
            guilty to having vaginal intercourse with a fifteen-year-old
            girl who was his karate student and the daughter of his
            friend.    The records indicate that there were several
            separate incidents of intercourse, with [Calcagni] allegedly
            pressuring the victim by threats of terminating her
            participation in karate and harming himself should the
            victim refuse his advances.

Pennsylvania Rule of Appellate Procedure 1925(a) Statement, 7/27/16, at 3-

4 (“1925(a) Op.”) (unpaginated).

       On April 6, 2015, Calcagni entered a negotiated guilty plea to one

count each of statutory sexual assault and corruption of minors.1 The trial

court deferred sentencing so that an SVP assessment could be performed.

       On August 14, 2015, the trial court held an SVP hearing.            At the

hearing, Veronique N. Valliere, Psy.D., a clinical psychologist and member of

the Sexual Offenders Assessment Board (“SOAB”), testified regarding her

assessment of Calcagni.            The trial court thoroughly summarized the

substance of Dr. Valliere’s testimony in its opinion filed with the May 12,

2016 order classifying Calcagni as an SVP, which we adopt and incorporate

herein. See Trial Ct. Op., 5/12/16, at 2-4.

       On January 8, 2016, the trial court sentenced Calcagni to 18 to 48

months’ incarceration, followed by 2 years’ probation, consistent with the
____________________________________________


       1
           18 Pa.C.S. §§ 3122.1(b), 6301(a)(1)(ii).



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parties’ plea agreement. On May 12, 2016, the trial court entered an order

classifying Calcagni as an SVP. Calcagni timely appealed to this Court.

       On June 16, 2016, Calcagni timely filed a Pennsylvania Rule of

Appellate Procedure 1925(b) statement.           On July 27, 2016, the trial court

filed a Rule 1925(a) opinion in which it primarily relied on the reasoning in

its prior opinion.

       Calcagni presents the following issues for our review:
           1. Did the trial court err in concluding that the
              Commonwealth presented sufficient evidence to classify
              [Calcagni] as an SVP where the Commonwealth’s expert
              opinion evidence was inadmissible under the standard
              for expert testimony in Pennsylvania?

           2. Did the trial court err in finding that the weight of the
              evidence established by “clear and convincing” evidence
              that [Calcagni] should be classified as an SVP?

Calcagni’s Br. at 4 (suggested answers omitted).2

       A challenge to a trial court’s SVP determination is a challenge to the

sufficiency of the evidence, for which our standard of review is de novo and

our scope of review is plenary. Commonwealth v. Meals, 912 A.2d 213,

218 (Pa. 2006). When reviewing a trial court’s SVP determination, we must

view the evidence in the light most favorable to the Commonwealth and may
____________________________________________


       2
        In its Rule 1925(a) opinion, the trial court found that Calcagni’s Rule
1925(b) statement was vague and suggested that his claims should be
deemed waived on that basis. 1925(a) Op. at 1-2. Calcagni raised the
same two issues in his Rule 1925(b) statement that he raises in the
statement of questions involved in his appellate brief, and the trial court
addressed each of Calcagni’s arguments in its opinions. Therefore, because
our review of Calcagni’s issues is not hampered, we decline to find waiver.



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not re-weigh the evidence or substitute our judgment for that of the trial

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

The question for the trial court is whether the Commonwealth’s evidence

establishes that the defendant has a mental abnormality or personality

disorder that makes him or her likely to engage in predatory sexually violent

offenses. Commonwealth v. Brooks, 7 A.3d 852, 863 (Pa.Super. 2010);

see 42 Pa.C.S. § 9799.12. We will reverse an SVP determination only if the

Commonwealth did not present “clear and convincing evidence that each

element of the statute has been satisfied.” Commonwealth v. Baker, 24

A.3d 1006, 1033 (Pa.Super. 2011), aff’d, 78 A.3d 1044 (Pa. 2013).

       On appeal, Calcagni asserts that the Commonwealth failed to prove by

clear and convincing evidence that he has a mental abnormality or

personality disorder that makes him likely to re-offend. See Calcagni’s Br.

at 13, 23.3 We disagree.

       First, Calcagni argues that Dr. Valliere’s finding that he suffers from

“other specified paraphilic disorder to adolescents” was unsupported because

she neither reviewed nor discussed Calcagni’s personal, professional, or

criminal history in the 24-year period between his 1991 and 2015


____________________________________________


       3
       Calcagni also appears to challenge the admissibility of Dr. Valliere’s
expert report and testimony. See Calcagni’s Br. at 4, 19, 23. However,
Calcagni did not object to the admission of Dr. Valliere’s report or testimony
at the hearing, so any such challenge is waived. See Baker, 24 A.3d at
1034.



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convictions. As the trial court noted, however, Calcagni expressly “waived

the opportunity to participate in the [SVP] assessment and also opted not to

testify at any of the assessment hearings, where he could have provided

such information.” Trial Ct. Op., 5/12/16, at 9 n.1; see Prendes, 97 A.3d

at 359 (“[T]he absence of an interview does not preclude the ability to

evaluate the offender’s behavior through available history for characteristics

similar or dissimilar to the criteria set forth in the law for defining [an

SVP].”) (quoting Commonwealth v. Woods, 909 A.2d 372, 381 (Pa.Super.

2006)).

      Second, Calcagni asserts that “there was no evidence to corroborate

Dr. Valliere’s recitation of the facts underlying his 1991 convictions.”

Calcagni’s Br. at 10.    According to Calcagni, although he was initially

charged with more serious offenses, he pled guilty to the lesser charge of

corruption of minors because “the alleged victims had provided seriously

inaccurate information to the police.” Id. at 24.

      At the hearing, Dr. Valliere testified that she reviewed the pre-

sentence report from Calcagni’s 1991 convictions, which included the

allegations of the five adolescent victims.   N.T., 8/14/15, at 9; see SVP

Assessment, 6/16/15, at 1.     Dr. Valliere acknowledged that Calcagni pled

guilty only to corruption of minors with respect to those victims, but noted

that “[t]he offense pattern was strikingly similar” to the instant case. N.T.,

8/14/15, at 12-13.    She testified that in both the 1991 and 2015 cases,

Calcagni demonstrated “a pattern of arousal to adolescents not only in his

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behaviors, but in his choices of putting himself in a position of authority with

adolescents.” Id. at 12. We agree with the trial court that Calcagni’s bald

assertion that the victims’ allegations in 1991 were “false” and “unproven” is

insufficient to contest the validity of Dr. Valliere’s conclusions.          See

Prendes,    97   A.3d   at   360   (“[SORNA]   does   not   limit   the   expert’s

consideration of information only to that admitted at trial or at the guilty

plea proceedings.”).

      Moreover, despite several continuance requests, Calcagni failed to

present any evidence to rebut or impeach Dr. Valliere’s testimony regarding

his prior convictions. The trial court explained:
            At the conclusion of the Commonwealth’s testimony,
         [defense] counsel requested the opportunity to investigate
         [Calcagni’s prior] criminal record and to call an expert to
         rebut Dr. Valliere’s conclusions. We granted counsel’s
         request and recessed the hearing.

            Thereafter, with the agreement of the Commonwealth,
         we granted several additional continuances to allow
         [Calcagni] to further investigate the factual record and to
         present testimony from an expert. After many months,
         [Calcagni] opted not to make any record in contradiction of
         Dr. Valliere’s findings or present expert testimony to
         contest Dr. Valliere’s conclusions.

1925(a) Op. at 5; see Prendes, 97 A.3d at 358 (“Once expert testimony

has been admitted, the rules of evidence then place the full burden of

exploration of facts and assumptions underlying the testimony of an expert

witness squarely on the shoulders of opposing counsel[],” who “bears the

burden of exposing and exploring “‘any weaknesses in the underpinnings of




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the expert’s opinion.’”) (quoting In re D.Y., 34 A.3d 177, 183 (Pa.Super.

2011)).

     Based on our de novo review of the certified record, the parties’ briefs,

and the relevant law, and viewing the evidence in the light most favorable to

the Commonwealth, we conclude that the trial court correctly determined

that Calcagni is an SVP under SORNA.      We reach this conclusion for the

reasons stated in the trial court’s May 12, 2016 opinion, which we adopt and

incorporate herein. See Trial Ct. Op., 5/12/16, at 1-13.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2017




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