J-A35034-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

ROBERT LEE LUKEHART,

                        Appellant                  No. 1926 WDA 2013


         Appeal from the Judgment of Sentence November 6, 2013
             In the Court of Common Pleas of Bedford County
           Criminal Division at No(s): CP-05-CR-0000463-2011


BEFORE: BENDER, P.J.E., BOWES, and ALLEN, JJ.

MEMORANDUM BY BOWES, J.:                      FILED DECEMBER 30, 2014

     Robert Lee Lukehart appeals from the judgment of sentence of five to

ten years incarceration to be followed by ten years probation imposed by the

trial court after Appellant pled guilty but mentally ill to charges of

involuntary deviate sexual intercourse (“IDSI”) with a child, aggravated

indecent assault, and two counts of indecent assault. We affirm.

     Appellant entered a guilty plea based on his molestation of his two

minor step-daughters, aged four and six. The court directed that Appellant

be assessed by the Sexual Offenders Assessment Board (“SOAB”). Herbert

Hays, a member of the SOAB for sixteen years, evaluated Appellant.       He

testified as an expert in the treatment and assessment of sex offenders at

Appellant’s sexually violent predator (“SVP”)/sentencing hearing. Mr. Hays

reviewed the police reports and was present for an interview with Appellant.
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According to Mr. Hays, Appellant demonstrated grooming behavior and used

his position as the children’s step-father to enable himself to sexually abuse

the children. Mr. Hays noted that Appellant claimed that his sexual activity

with the children was for educational purposes and “training them to

understand AIDS.”    N.T., 11/6/13, at 11. Appellant denied being sexually

attracted to the children; however, the abuse occurred over a two-year time

period.   Specifically, Appellant had the children perform oral sex on him,

would fondle and digitally penetrate their vaginas, and make them touch his

penis. He told the children that, if they reported the conduct, he would kill

both the girls and their mother.   Based on these factors, Mr. Hays opined

that Appellant met the criteria for pedophilia and that this condition made it

likely that he would commit a sexually violent offense in the future.

      Appellant presented his own expert, Dr. Edwin Tan. Dr. Tan testified

as an expert in psychiatry.   He earlier had provided a report in which he

found Appellant incompetent to stand trial based on a delusional disorder.

At the SVP hearing, he asserted that there was no indication that Appellant

molested the children for purposes of sexual gratification.       This was in

contradiction to Mr. Hays’ testimony.    According to Dr. Tan, there was no

prior history of sexual abuse and that the molestation occurred as the

“product of his mental illness.” Id. at 42. In his view, Appellant was not a

pedophile.   However, Dr. Tan acknowledged he was not familiar with the




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statute regarding SVP’s and did not know the definition of predatory

behavior under that law.

      The trial court rejected Dr. Tan’s diagnosis and found that the

Commonwealth established by clear and convincing evidence that Appellant

met the criteria for being an SVP. It then proceeded to sentence Appellant

to the aforementioned periods of incarceration and probation based on the

plea agreement for the IDSI count.       The court also imposed concurrent

sentences of three to six years to be followed by four years probation for the

aggravated indecent assault charge, and nine months to two years

incarceration followed by three years probation for both indecent assault

crimes.

      Appellant timely appealed.    The trial court directed Appellant to file

and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal.    Appellant complied and the court filed a Pa.R.A.P. 1925(a) order.

The matter is now ready for our review. Appellant’s sole issue on appeal is

as follows.

      I.      Whether the trial court erred when it ruled that the
              Commonwealth demonstrated by clear and convincing
              evidence that Appellant is a sexually violent predator in
              contradiction to evidence to the contrary presented by
              Appellant?

Appellant’s brief at 7.

      Appellant’s claim relates to the sufficiency of the evidence for purposes

of his being classified as an SVP.     In considering the sufficiency of the



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evidence with respect to an SVP designation, we “must be able to conclude

that the fact-finder found clear and convincing evidence that the individual is

a sexually violent predator.”        Commonwealth v. Morgan, 16 A.3d 1165,

1168 (Pa.Super. 2011).           In evaluating the evidence, “we view all the

evidence and reasonable inferences therefrom in the light most favorable to

the Commonwealth.” Id.

       Our Supreme Court comprehensively and cogently discussed the

requirements and burden of proof applicable in determining whether a

defendant is an SVP in Commonwealth v. Meals, 912 A.2d 213 (Pa.

2006).1 Relevant to this case, Meals set forth that an SVP is a person who

“due to a mental abnormality or personality disorder” is “likely to engage in

predatory sexually violent offenses.” Id. at 218.

       The Meals Court continued, “The statute defines ‘mental abnormality’

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.’” Id. Further, “[t]he

term ‘predatory,’ in turn, is defined as ‘an 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

____________________________________________


1
  Meals discussed Megan’s Law II. Appellant is subject to a more recent
version of Megan’s Law.



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victimization.’”   Id.   Pedophilia is considered a mental abnormality under

Pennsylvania law.

      The High Court in Meals also delineated the governing law with

respect to the clear and convincing evidence standard.       The Court therein

opined that the standard of proof of clear and convincing evidence is “an

‘intermediate’ test, which is more exacting than a preponderance of the

evidence test, but less exacting than proof beyond a reasonable doubt.” Id.

Under the clear and convincing standard, the evidence must be “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.”

Id. at 219.

      Appellant argues that Mr. Hays could not determine the time frame for

the offenses, thereby precluding a finding that the acts occurred over more

than a six-month time frame. In order to be considered a pedophile under

Megan’s Law, the abuser must have sexual fantasies, urges, or behaviors

involving prepubescent children over at least six months. Appellant asserts

that “there was simply no way to know whether these acts occurred in the

course of one week or two months[.]” Appellant’s brief at 16. In addition,

Appellant submits that Mr. Hays acknowledged that Appellant had no

documented prior history of sex offenses.

      Appellant further suggests that the “trial court’s determination that he

is a sexually violent predator flies in the face of the expert testimony to the

contrary by an expert in the field of psychiatry.”     Id. at 24.   In essence,

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Appellant asks this Court to reweigh and reconsider the expert testimony.

Appellant’s entire argument disregards our standard of review.      Here,

Mr. Hays found that Appellant did exhibit sexual behaviors involving

prepubescent children for over six months.    He based this finding on the

criminal information and police reports that indicated the abuse occurred

between a one-to-two-year period. Since the trial court was free to accept

Mr. Hays’ testimony, there was no abuse of discretion.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2014




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