J-A35034-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                                          :
            v.                            :
                                          :
JEFFREY SCOTT PINCHOCK,                   :
                                          :
                  Appellant               :           No. 135 WDA 2015

        Appeal from the Judgment of Sentence December 18, 2014
            in the Court of Common Pleas of McKean County,
             Criminal Division, No. CP-42-CR-0000225-2013

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED JANUARY 19, 2016

      Jeffrey Scott Pinchock (“Pinchock”) appeals from the judgment of

sentence imposed after a jury convicted him of indecent assault and

corruption of minors.1 We affirm.

      The female victim, W.R., met Pinchock in 2012, when she was fifteen

years old. N.T. (trial), 12/9/13, at 6-7. At that time, Pinchock was thirty-

nine years old.   Id. at 7.   Pinchock resided in the victim’s home with her

mother and her mother’s female romantic partner, Kristin Smithmyer

(“Smithmyer”). Id. Smithmyer had known Pinchock for several years, and

she let him stay in one of the rooms of her house. Id. at 61.

      The victim testified that she and Pinchock were friends, and he would

oftentimes take her fishing, drive her to different places, and smoke

1
   18 Pa.C.S.A. §§ 3126(a)(1), 6301(a)(1)(i).         Pinchock’s conviction of
indecent assault was graded as a second-degree misdemeanor. Accordingly,
we will hereinafter refer to this offense as indecent assault – M2. Pinchock’s
corruption of minors conviction was graded as a first-degree misdemeanor.
J-A35034-15

marijuana with her, which he supplied.    Id. at 7-11. Pinchock would also

buy the victim items such as soda and ice cream. Id. at 10. At some point,

Pinchock began saying to the victim that she “owed” him sex in return for all

of the things that he did for her.   Id. at 10-11.   According to the victim,

“[Pinchock] would say that he did a lot for me, he drove me places, he took

me places and he bought me things and that he deserved something in

return.”     Id. at 10; see also id. at 11 (wherein the victim stated that

Pinchock “basically just said, you owe me, you owe me, you should do this

for me.”).

      On August 30, 2012, while the victim’s mother and Smithmyer were in

Florida, Pinchock picked the victim up at the end of the school day, and

drove her back to their home. Id. at 12-13. There was no one else in the

home at the time. Id. at 13. Pinchock offered the victim a marijuana “joint”

to smoke, but said “if I give you this, then I expect something in return.”

Id. at 14; see also id. (wherein the victim explained that Pinchock wanted

sex in return). The victim told Pinchock no, whereupon he began yelling at

her, and acting aggressively. Id. The victim went to her room to get away

from Pinchock, and took out her phone to text her friends.     Id.   Pinchock

followed her to her room, grabbed her phone and threw it, and told her she

was not going anywhere.        Id. at 14-15.    Pinchock continued yelling,

repeatedly told the victim that she owed him for everything he did for her.

Id. at 15. Eventually, the victim gave into Pinchock’s demands and took off

her clothes. Id. at 15-16. The victim testified as to her fear that Pinchock

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J-A35034-15

was going to hurt her. Id. at 16. The victim got onto her bed, and Pinchock

removed his clothes. Id. at 16-17. According to the victim, “[Pinchock] got

on top of me and put his penis in my vagina, [and] then I just closed my

eyes.” Id. at 17; see also id. (wherein the victim said that she did not say

anything to Pinchock because “I was scared”).

      The Commonwealth also presented the testimony of Smithmyer, who

had known Pinchock for approximately ten years. Id. at 55-56. Smithmyer

testified that when she was fifteen or sixteen years-old, Pinchock frequently

would take her fishing and smoke marijuana with her, which he provided.

Id. at 56-57.   Pinchock would also buy Smithmyer cigarettes and other

items. Id. at 58. Smithmyer stated that although she and Pinchock initially

were friends, Pinchock subsequently made comments to her indicating that

he desired a sexual relationship.   Id.; see also id. (wherein Smithmyer

stated that “I could tell that … he wanted something more from me ….”).

Eventually, Pinchock directly told Smithmyer, while she was still a minor,

that he wanted to have sex with her, and that she “owed” it to him. Id. at

58-59; see also id. at 59 (wherein Smithmyer explained that Pinchock

indicated that she owed him sex for “taking me fishing, [and] on a trip to

Cabella’s,” and because “he smoked weed with me, bought me cigarettes or

would take me to Sheetz and buy me food ….”). Smithmyer told Pinchock “I

am not having sex with you,” and she never had sexual relations with him.

Id. at 59.




                                 -3-
J-A35034-15

        The victim first reported the sexual assault to her mother several

months after it occurred, in March 2013.2 The victim testified that she did

not report it earlier because Pinchock had threatened to kill her and/or her

family members if she ever told anyone. Id. at 18-19.

        In March 2013, the Commonwealth charged Pinchock with indecent

assault – M2 and corruption of minors, as well as statutory sexual assault,3

sexual    assault,4   and    felony   corruption   of   minors   –   sexual   nature5

(collectively, “the remaining sexual offenses”).

        Prior to trial, the Commonwealth filed a Motion in limine, seeking to

introduce “prior bad acts” evidence to establish a common plan or scheme

by Pinchock. Specifically, the Commonwealth sought to introduce testimony

from Smithmyer about Pinchock’s having previously pressured her to engage

in sexual activity with him while she was a minor.               After conducting a

hearing, the trial court entered an Opinion and Order on November 26,

2013, granting the Motion in limine and explaining the court’s rationale

underlying its ruling.


2
  The victim’s mother had kicked Pinchock out of the house approximately
one month earlier, after discovering that Pinchock had been giving the victim
marijuana. N.T., 12/9/13, at 76. The victim’s mother additionally stated
that “I told … [Pinchock] that [the victim] was afraid of him because he had
smashed her cell phone at one point when I was out of town in Florida ….”
Id. at 76-77.
3
    18 Pa.C.S.A. § 3122.1.
4
    18 Pa.C.S.A. § 3124.1.
5
    18 Pa.C.S.A. § 6301(a)(1)(ii).

                                      -4-
J-A35034-15

        The matter proceeded to a jury trial in December 2013. At the close

of trial, the jury found Pinchock guilty of indecent assault – M2 and

corruption of minors, but found him not guilty of the remaining sexual

offenses. Pinchock filed a post-trial Motion, which the trial court denied.

        In February 2014, the trial court issued an Order directing that a

member of the Sexual Offender Assessment Board (“SOAB”) assess

Pinchock,6 and issue a recommendation as to whether he meets the criteria

of a sexually violent predator (“SVP”).     The SOAB assigned Brenda Manno

(“Manno”), a licensed social worker, to evaluate the case and prepare a

report. Manno prepared a report (“SVP Report”), opining that Pinchock is an

SVP.     The trial court subsequently held an SVP hearing, at which Manno

testified.7 By an Opinion and Order entered on November 24, 2014, the trial

court directed that Pinchock be classified as an SVP.8 As a result of his SVP

classification, Pinchock is required to register with the Pennsylvania State

Police as a sex offender for his lifetime, pursuant to the Sex Offender


6
    Pinchock did not participate in the assessment.
7
  As we discuss below, Manno conceded at the hearing that she made an
error in the SVP Report concerning Pinchock’s conviction of corruption of
minors. N.T., 10/17/14, at 41. However, Manno testified that such error did
not contribute to her opinion that Pinchock is an SVP. Id. at 53.
8
  The trial court stated that “although it had concerns regarding the basis for
[] Manno’s conclusions/opinion[, which] initially caused the [c]ourt
hesitation[, a]fter a review of the known facts in this case[,] the [c]ourt
finds that [Pinchock] is an S[VP].” Opinion and Order, 11/24/14, at 5
(unnumbered); see also id. at 6 (unnumbered) (stating that “[a]lthough []
Manno’s [SVP R]eport was inaccurate in some respects, the [c]ourt still
accepts [] Manno’s opinion as accurate.”).

                                   -5-
J-A35034-15

Registration and Notification Act (“SORNA”).9 On December 18, 2014, the

trial court sentenced Pinchock to an aggregate term of 15 months to 6 years

in prison.

      Pinchock timely filed a Notice of Appeal. In response, the trial court

ordered him to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. Pinchock timely filed a Concise Statement, after

which the trial court issued a Pa.R.A.P. 1925(a) Opinion.

      On appeal, Pinchock presents the following issues for our review:

        Should the Superior Court reverse and dismiss [Pinchock’s]
        conviction[s] where:

       a. The weight of the evidence of [] record does not support
          the verdict?

       b. The verdict rendered is logically and legally inconsistent
          where the jury found [that] there was no sexual
          contact[,] but found [Pinchock] guilt[y] o[f] indecent
          assault [– M2]?

       c. The [trial] court improperly admitted prior bad acts of
          [Pinchock] involving a remote and unrelated incident as
          to prevent [Pinchock] from receiving a fair trial[,] since
          the evidence was overly prejudicial?

       d. [Pinchock] should not have been required to participate
          in [SORNA’s] reporting requirements since the Megan’s
          Law reporting requirement was not the prevailing law at
          the time the offense occurred[,] but was mandated as of
          the date of conviction?


9
  See 42 Pa.C.S.A. § 9799, et seq. Under SORNA, Pinchock’s conviction of
indecent assault – M2 is classified as a Tier I sexual offense.         Id.
§ 9799.14(b)(6); see also id. § 9799.15(d) (providing that “[a]n individual
convicted of a Tier I sexual offense … who is determined to be a sexually
violent predator under section 9799.24 (relating to assessments) shall
register for the life of the individual.”).

                                 -6-
J-A35034-15


       e. [Manno] failed to consider legally relevant and proper
          evidence in reaching [her] conclusion [that Pinchock] is
          a[n SVP,] as defined under 42 Pa.C.S.A. [§] 9979?

Brief for Appellant at 15.

      Pinchock first argues that “[t]he Superior Court should reverse and

dismiss [his] conviction[s] where [the] weight of the evidence of the record

does not support the verdict.” Id. at 29 (emphasis omitted).10

      We review a challenge to the weight of the evidence under the

following standard:

      Appellate review of a weight claim is a review of the exercise of
      discretion, not of the underlying question of whether the verdict
      is against the weight of the evidence. Because the trial judge
      has had the opportunity to hear and see the evidence presented,

10
    In connection with this issue, Pinchock also appears to challenge the
sufficiency of the evidence. See Brief for Appellant at 29 (setting forth the
standard of review for sufficiency claims); see also id. at 31 (challenging
the “sufficiency of the victim’s testimony”). However, Pinchock did not raise
a sufficiency challenge in either his court-ordered Pa.R.A.P. 1925(b) Concise
Statement or his Pa.R.A.P. 2116(a) Statement of Questions Involved
section. Moreover, sufficiency challenges are distinct from challenges to the
weight of the evidence. See Commonwealth v. Birdseye, 637 A.2d 1036,
1039 (Pa. Super. 1994) (differentiating between sufficiency and weight
challenges, and observing that “in making a claim that the verdict was
against the weight of the evidence, it is conceded that there was sufficient
evidence to sustain the verdict.”). Accordingly, Pinchock failed to preserve
his sufficiency claim for our review.          See Pa.R.A.P. 1925(b)(4)(vii)
(providing that “[i]ssues not included in the [Concise] Statement … are
waived.”); Pa.R.A.P. 2116(a) (stating that “[n]o question will be considered
unless it is stated in the statement of questions involved or is fairly
suggested thereby.”). Nevertheless, even if Pinchock had not waived his
sufficiency challenge, we would conclude that it lacks merit based on the
trial court’s analysis concerning the sufficiency of the evidence in its
Pa.R.A.P. 1925(a) Opinion.        See Trial Court Opinion, 4/23/15, at 3-4
(unnumbered). Indeed, there was ample evidence presented for the jury to
have properly found that the Commonwealth proved the elements of
indecent assault – M2 and corruption of minors beyond a reasonable doubt.

                                 -7-
J-A35034-15

      an appellate court will give the gravest consideration to the
      findings and reasons advanced by the trial judge when reviewing
      a trial court’s determination that the verdict is against the weight
      of the evidence. One of the least assailable reasons for granting
      or denying a new trial is the lower court’s conviction that the
      verdict was or was not against the weight of the evidence and
      that a new trial should be granted in the interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis and

citations omitted).

      Relief on a weight of the evidence claim is reserved for
      extraordinary circumstances, when the [fact-finder’s] verdict is
      so contrary to the evidence as to shock one’s sense of justice
      and the award of a new trial is imperative so that right may be
      given another opportunity to prevail. On appeal, [an appellate]
      Court cannot substitute its judgment for that of the [fact-finder]
      on issues of credibility, or that of the trial judge respecting
      weight.

Commonwealth v. Sanchez, 36 A.3d 24, 27 (Pa. 2011) (citations and

quotation marks omitted).

      Pinchock argues that the jury’s guilty verdicts were against the weight

of the evidence because the victim’s testimony was not credible. See Brief

for Appellant at 30-31 (asserting that the victim described “the location of

the [sexual assault] in a bedroom that was not even in existence as of

August 2012, and [there were] numerous inconsistencies pervasive to the

evidence presented.”).

      In its Pa.R.A.P. 1925(a) Opinion, the trial court rejected Pinchock’s

weight of the evidence claim, stating, inter alia, that “[s]ince credibility was

left [to] the discretion of the jury to assess, [Pinchock’s] assertions

regarding the weight of the evidence lack merit.”         Trial Court Opinion,



                                  -8-
J-A35034-15

4/23/15, at 4 (unnumbered); see also Sanchez, supra (stating that an

appellate court cannot substitute its judgment for that of the fact-finder on

issues of credibility). We discern no abuse of discretion by the trial court in

rejecting Pinchock’s claim, nor is the jury’s verdict so contrary to the

evidence as to shock our collective sense of justice. See Sanchez, supra.

Accordingly, Pinchock’s first issue does not entitle him to relief.

      Next, Pinchock contends that his conviction of indecent assault – M2

must be reversed because the jury’s guilty verdict on this count was

inconsistent with their acquittal concerning the remaining sexual offenses.

See Brief for Appellant at 31-32. Pinchock avers that

      [he] was convicted of indecent assault [– M2,] which does not
      require penetration[,] but only touching a victim in inappropriate
      places of her body[.] … The jury’s inconsistent verdict clearly
      finds there was some measure of inappropriate touching[,] but
      obviously no penetration as defined.        Thus the necessary
      elements of indecent assault [– M2] cannot be determined of
      having to occur [sic] if the jury’s verdict does not find [that
      Pinchock] engaged in any inappropriate touching.

Id. at 32; see also id. at 15 (arguing that “[t]he verdict rendered is

logically and legally inconsistent where the jury found [that] there was no

sexual contact ….”).

      Concerning inconsistent verdicts and acquittals, our Pennsylvania

Supreme Court has explained as follows:

      Federal and Pennsylvania courts alike have long recognized that
      jury acquittals may not be interpreted as specific factual findings
      with regard to the evidence, as an acquittal does not definitively
      establish that the jury was not convinced of a defendant’s guilt.
      Rather, … an acquittal may merely show lenity on the jury’s
      behalf, or that “the verdict may have been the result of

                                   -9-
J-A35034-15

      compromise, or of a mistake on the part of the jury.” United
      States v. Dunn, 284 U.S. 390, 394, 52 S. Ct. 189, 76 L. Ed.
      356 (1932); see also [Commonwealth v.] Carter, 282 A.2d
      [375,] 376 [(Pa. 1971)].       Accordingly, the United States
      Supreme Court has instructed that courts may not make factual
      findings regarding jury acquittals and, thus, cannot “upset”
      verdicts by “speculation or inquiry into such matters.” Dunn,
      284 U.S. at 394.

Commonwealth v. Moore, 103 A.3d 1240, 1246 (Pa. 2014); see also

Commonwealth v. Rose, 960 A.2d 149, 158 (Pa. Super. 2008) (stating

that “[i]nconsistent verdicts, while often perplexing, are not considered

mistakes and do not constitute a basis for reversal. … Thus, this Court will

not disturb guilty verdicts on the basis of apparent inconsistencies as long as

there is sufficient evidence to support the verdict.”).

      Based upon the foregoing authority, and because we have already

determined that Pinchock’s convictions are supported by sufficient evidence,

his claim of an inconsistent verdict does not entitle him to relief.      See

Moore, supra; Rose, supra.

      In his third issue, Pinchock contends that the trial court erred and

deprived him of a fair trial by improperly permitting the Commonwealth to

introduce into evidence the “prior bad acts” testimony of Smithmyer. See

Brief for Appellant at 32-34. According to Pinchock, Smithmyer’s testimony

was “extremely prejudicial” and concerned an “unrelated prior bad act [that]

was not sexual in nature[, and] extremely remote in time from the date of

the alleged [] sexual [assault that] occur[ed] on August 31, 2012.” Id. at

33, 34 (citing and relying upon Commonwealth v. Shively, 424 A.2d



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J-A35034-15

1257, 1259 (Pa. 1981) (stating that “evidence of prior crimes is admissible[]

to prove other like crimes by the accused so nearly identical in method as to

earmark them as the handiwork of the accused[,]” and that “[e]ven if

evidence of prior criminal activity is admissible said evidence will be

rendered inadmissible if it is too remote.” (citation, emphasis and ellipses

omitted)).

      Our standard of review concerning a challenge to the admissibility of

evidence is as follows:

      The admissibility of evidence is a matter for the discretion of the
      trial court and a ruling thereon will be reversed on appeal only
      upon a showing that the trial court committed an abuse of
      discretion. An abuse of discretion may not be found merely
      because an appellate court might have reached a different
      conclusion, but requires a result of manifest unreasonableness,
      or partiality, prejudice, bias, or ill-will, or such lack of support so
      as to be clearly erroneous.

Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012) (citations and

quotation marks omitted); see also Commonwealth v. Patterson, 91

A.3d 55, 68 (Pa. 2014) (stating that “[t]he admission of evidence of prior

bad acts is solely within the discretion of the trial court, and the court’s

decision will not be disturbed absent an abuse of discretion.”).

      In its Opinion and Order entered on November 26, 2013, the trial court

thoroughly addressed Pinchock’s claim, set forth the applicable law and

pertinent preliminary hearing testimony of the victim and Smithmyer, and

determined that Smithmyer’s testimony would be admissible at trial to

establish a common plan or scheme. See Opinion and Order, 11/26/13, at



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J-A35034-15

1-7 (unnumbered). The trial court’s sound analysis is supported by the law

and the record, and we affirm on this basis in concluding that the court

properly exercised its discretion in admitting this evidence. See id.

      In his fourth issue, Pinchock argues that the Commonwealth failed to

meet its burden, by clear and convincing evidence, to establish that he is an

SVP, since the evaluation and recommendation completed by Manno was not

based on “legally relevant and proper evidence.” Brief for Appellant at 34;

see also id. at 36 (asserting that “Man[n]o based her findings on hearsay

statements, inaccurate information[,] including the preliminary hearing

transcript,     outdated     employment[]       and       mental   health    information[,]

questionable drug and alcohol records, and factual inconsistencies that were

established at trial[,] including the victim’s contradicting statements made at

the preliminary hearing and trial.”). Additionally, Pinchock contends that his

classification as an SVP was in error since “the Commonwealth failed to …

establish [that he] suffers [from] a mental health disorder that makes him

likely to engage in predatory sexually violent offenses.” Id. at 37.

      “[I]n     reviewing    the    sufficiency      of   the   evidence    regarding    the

determination of SVP status, we will reverse the trial court only if the

Commonwealth has not presented clear and convincing evidence sufficient to

enable the trial court to determine that each element required by the

statute[,     i.e.,   the   SVP    provisions   of    SORNA,]      has     been   satisfied.”

Commonwealth v. Brooks, 7 A.3d 852, 860 (Pa. Super. 2010) (citation

omitted). Additionally, this Court has stated that

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J-A35034-15

      [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. The reviewing court must examine all of
      the Commonwealth’s evidence without consideration of its
      admissibility. 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, 97 A.3d 337, 356 (Pa. Super. 2014) (citations

omitted).

      In its Opinion and Order entered on November 24, 2014, the trial court

addressed Pinchock’s challenge to his SVP classification, thoroughly set forth

the relevant law, and determined that notwithstanding the court’s “concerns

regarding the basis for [] Manno’s conclusions/opinion,” the Commonwealth

established, by clear and convincing evidence, that Pinchock is an SVP. See

Opinion and Order, 11/24/14, at 2-6. The trial court’s analysis is supported

by the law and the record, and we affirm on this basis in rejecting Pinchock’s

fourth issue. See id.

      Finally, Pinchock argues that the trial court erred by “retroactively”

applying the provision of SORNA requiring that he report as a sexual

offender for his lifetime, where, at the time of the offense on August 30,

2012, the version of Megan’s Law then in effect did not require a defendant

convicted of indecent assault – M2 to register as a sexual offender.        See




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Brief for Appellant at 37-38;11 see also id. at 38 (stating that “the

commission of the crime concerning [] Pinchock occurred in August 2012[,]

when … indecent assault [– M2] did not require mandatory reporting under

Megan’s Law[,] as such requirement did not take official effect until

December [20], 2012[,] under 42 Pa.C.S.A. [§] 9799.13.”). Pinchock avers

that this Court’s decision in Commonwealth v. Bundy, 96 A.3d 390 (Pa.

Super. 2014), is controlling and compels a ruling that Pinchock is not

required to register as a sexual offender. See Brief for Appellant at 37-38.

      In Bundy, the defendant pled nolo contendere to, inter alia, indecent

assault – M2 in 2009,12 and was released on probation. Bundy, 96 A.3d at

391. At the time of his conviction, the version of Megan’s Law then in effect

did not require the defendant to register as a sex offender. Id. However,

following a subsequent resentencing resulting from a probation violation, the

defendant was informed that he would be required to register for 25 years

pursuant to the new provisions of SORNA.         Id. at 392; see also 42

Pa.C.S.A. §§ 9799.12, 9799.13(2), 9799.14(c)(1.2). The defendant filed a

petition with the trial court seeking relief from the registration provision.

Bundy, 96 A.3d at 392.      While the defendant’s petition was pending, an

amendment to SORNA was enacted in March 2014, modifying 42 Pa.C.S.A.

11
   Pinchock does not challenge SORNA’s constitutionality concerning its
retroactive application.
12
  The defendant in Bundy was convicted of indecent assault – M2 under 18
Pa.C.S.A. § 3126(a)(8). Pinchock’s conviction was under 18 Pa.C.S.A.
§ 3126(a)(1). Both crimes are graded as second-degree misdemeanors.
See id. § 3126(b)(1).

                                 - 14 -
J-A35034-15

§ 9799.13.13 Bundy, 96 A.3d at 392-93. This Court held that because the

defendant was convicted of indecent assault – M2 in 2009, within the

timeframe     provided for   in paragraph (3.1)(i)(A) of      section 9799.13

13
     Amended section 9799.13 provides, in relevant part, as follows:

     The following individuals shall register with the Pennsylvania State
     Police … and otherwise comply with the provisions of this subchapter:

     (1) An individual who, on or after the effective date of this section[,
     i.e., December 20, 2012], is convicted of a sexually violent offense
     and who has a residence within this Commonwealth or is a transient.

     ***

     (2) An individual who, on or after [December 20, 2012], is, as a
     result of a conviction for a sexually violent offense, … being
     supervised by the Pennsylvania Board of Probation and Parole or
     county probation or parole ….

     ***

     (3.1) The following:

          (i) An individual who between January 23, 2005, and
          December 19, 2012, was:

            (A) convicted of a sexually violent offense;

            ***

          (ii) For purposes of this paragraph, the term “sexually
          violent offense” shall have the meaning set forth in section
          9799.12 (relating to definitions), except that it shall not
          include:

            ***

            (B) A conviction under 18 Pa.C.S. § 3126 (relating to
            indecent assault) where the crime is graded as a
            misdemeanor of the second degree ….

42 Pa.C.S.A. § 9799.13 (emphasis added).

                                  - 15 -
J-A35034-15

(hereinafter “the exception timeframe”), and because paragraph (3.1)(ii)(B)

excludes indecent assault, graded as a misdemeanor of the second degree,

from the definition of a “sexually violent offense” triggering registration, the

defendant was not subject to registration. Id. at 395-96.

      In the instant case, there was no retroactive application of SORNA’s

registration provisions.   Rather, at the time of Pinchock’s conviction of

indecent assault – M2 on December 10, 2013, this offense was classified as

a Tier I sexual offense, which required lifetime registration in light of

Pinchock’s   SVP   classification.     See    42   Pa.C.S.A.   §§   9799.14(b)(6),

9799.15(d). Unlike the situation in Bundy, Pinchock was not convicted of

indecent assault – M2 within the exception timeframe provided for in section

9799.13(3.1)(i)(A).    Moreover, to the extent that Pinchock points out that

the date of his offense, i.e., August 30, 2012, occurred within the

exception timeframe, this fact is immaterial; the date of the offender’s

conviction controls.    See 42 Pa.C.S.A. § 9799.13(3.1)(i)(A); see also

Bundy, 96 A.3d at 395-96.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/19/2016


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                                                                                                           12/18/2015 09:59 AM




COMMONWEALTH OF PENNSYLVANIA,                                         IN THE COURT OF COMMON PLEAS

                              Plaintiff                               OF McKEAN COUNTY, PENNSYLVANIA

           vs.                                                        CRIMINAL DIVISION

JEFFREY S. PINCHOCK,                                                  NO. 225 C.R. 2013

                                Defendant.



                                            OPINION AND ORDER

          The Commonwealth asserts that the testimony of Kristin Rose Smithmyer ("hereinafter

"KRS"} regarding the Defendant's alleged prior conduct directed toward her is admissible under

Pa.R.Evd. 404(b }(2}, the Common Plan or Scheme exception to the hearsay rule. The Defendant

asserts that this testimony does not fall under this exception and, therefore, is inadmissible.1 A

hearing was held and the matter is now ready for decision.


                                          FACTUAL BACKGROUND


           The central issue is whether the facts of these two allegations are significantly similar to

demonstrate that the Defendant was acting under a common plan or scheme.




1
    The Defense also asserts that, since the Commonwealth failed to call Wl at the hearing to address their Motion
in imine, the Commonwealth is precluded from presenting her testimony regarding prior bad acts at the time of
trial. They assert that they should have been afforded the opportunity to cross examine her and fully explore all
details of her allegations prior to trial. However, the issue is whether the defense has obtained appropriate notice
"of the general nature of any such evidence the prosecutor intends to introduce at trial." Pa.R.Evid.404{b}(2). In
Commonwealth v. Lynch, 57 A.3d 120, at 126 (Pa.Super. 2012) the Superior Court held that [p]roper notice was
given where an affidavit of probable cause set forth the substance of the witnesses proffered testimony and the
defense had received the affidavit of probable cause prior to trial. The Lynch Court focused on whether the
defense was subject to "unfair surprise" at the time of trial. The Court finds that the statement provided by the
Commonwealth as an offer of proof adequately advises the defense of the substance and details of Wl's
testimony and, therefore, the defense can properly prepare for trial without "unfair surprise." Of course, if Wl's
testimony at trial was not in conformance with her prior statement the Court would, if requested by the defense to
do so, consider excluding some or all of this testimony and, if appropriate, granting a request for a mistrial.
                                                                                   r;
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       A summary of the facts asserted by KRS are as follows: When KRS was 15 or 16

she met the Defendant through mutual friends. Since KRS's D.O.B. is 7/25/1998, this

would have been in 2003 and/or 2004; and, at that time the Defendant would have been

thirty or thirty one years old (Defendant's D.O.B. 4/15/73). After the Defendant and KRS

met she "partied" with the Defendant and others. She states "our friendship consisted of

partying together, fishing and other outdoor activities." When KRS was "seventeen or

so" the Defendant "started acting very amorous towards me (KRS) to the point of

infatuation." The Defendant told KRS she was beautiful and would "make a perfect

wife." KRS told the Defendant "no" and that she was not interested in him. After this

the Defendant confronted KRS during a "few situations." The Defendant was upset and

told KRS that she "lead him on" and that "he did so much for me like take me fishing and

smoke weed with me and buy me things." Further, he told her "for payment of all that

stuff he did for me that I should repay him with sex." KRS told the Defendant to "get

that notion out of his head for good." The Defendant then became very upset and drove

KRS home and "the situation was never discussed between us again."


       The allegations in the current case are as follows: When the victim was 15 years

old and around Labor Day, 2012, the Defendant and the victim were alone at their

residence in McKean County. At that time the Defendant was approximately thirty nine

years of age (Defendants' D.O.B. 4/15/1973). The Defendant had previously been given

permission to reside at the same home as the victim and her Mother. The Defendant

asked the victim if she wanted to smoke marijuana with him. The victim said "yes." The

victim and the Defendant smoked marijuana together many times prior to this incident.

While "rolling a joint" the Defendant told the victim that he "was always doing things for
                                                                                    Circulated 12/18/2015 09:59 AM




her" and that she should do something for him and have sex with him. The victim told

him no but the defendant persisted repeating that "he does stuff for her and she should

repay him." The victim indicated no several times but then, because she felt he was

going to harm her if she did not do it, laid on the bed while the Defendant got on top of

her and had intercourse with her. The Defendant then left and, the next day, threatened to

harm the victim if she told anyone about this incident.


                                           AUTHORITY


       It is set forth in Rule 404(b)(2) that:


         (b) Other Crimes, Wrongs, or Acts,
         (2) Evidence of other crimes, wrongs, or acts may be admitted for purposes, such as
         proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence
         of mistake or accident.
Pa.R.Evid. 404(b)(2). In Commonwealth v. Frank, 577 A.2d 609 (Pa. Super. Ct. 1990), the

Superior Court discussed in detail the standard to apply when addressing a 404(b)(2) issue:


       We are cognizant of the fact that a determination of whether evidence is
       admissible under the common plan exception must be made on a case by case
       basis in accordance with the unique facts and circumstances of each case.
       However, we recognize that in each case, the trial court is bound to follow the
       same controlling, albeit general, principles of law. When ruling upon the
       admissibility of evidence under the common plan exception, the trial court must
       first examine the details and surrounding circumstances of each criminal incident
       to assure that the evidence reveals criminal conduct which is distinctive and so
       nearly identical as to become the signature of the same perpetrator. Relevant to
       such a finding will be the habits or patterns of action or conduct undertaken by the
       perpetrator to commit crime, as well as the time, place, and types of victims
       typically chosen by the perpetrator. Given this initial determination, the court is
       bound to engage in a careful balancing test to assure that the common plan
       evidence is not too remote in time to be probative. If the evidence reveals that the
       details of each criminal incident are nearly identical, the fact that the incidents are
       separated by a lapse of time will not likely prevent the offer of the evidence
       unless the time lapse is excessive. Finally, the trial court must assure that the
       probative value of the evidence is not outweighed by its potential prejudicial
                                                                                  Circulated 12/18/2015 09:59 AM




       impact of the evidence with such factors as the degree of similarity established
       between the incidents of criminal conduct, the Commonwealth's need to present
       evidence under the common plan exception, and the ability of the trial court to
       caution the jury concerning the proper use of such evidence by them in their
       deliberations.

Id. At 614.


       In Commonwealth v. Aikens, 990 A.2d 1181 (Pa. Super. Ct. 2010) the Superior

Court affirmed the decision of the trial court to allow the testimony of a defendant's 32

year old daughter that, when she was 15 years old, her father made her watch a

pornographic video and then raped her. In that case the defendant's second daughter

asserted that, when she was 14, her father made her watch a pornographic video and

attempted have intercourse with her. The Superior Court held:


       In the case at bar, we believe that the fact pattern involved in the two
       incidents was markedly similar. In both cases, the victims were of like
       ages: T.S. was fourteen years old, and V.B. was fifteen years old. Both
       victims were Appellant's biological daughters. Appellant initiated the
       contact during an overnight visit in his apartment. He began sexual abuse
       by showing the girls pornographic movies. The assaults occurred in bed at
       night. While Appellant raped V.B. and indecently assaulted T.S., T.S.
       stopped Appellant from disrobing her and committing the more serious
       sexual assault. In addition, Appellant mimicked the grinding movements
       of sexual intercourse on T.S. in order to sexually gratify himself. These
       matching characteristics elevate the incidents into a unique pattern that
       distinguishes them from a typical or routine child-abuse factual pattern.
       Hence, we reject Appellant's position that we are pigeonholing sexual
       abuse cases to such an extent that any prior instance of child abuse would
       be admissible in a subsequent child abuse prosecution. See also
       Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264(1989) (evidence
       about prior rape correctly allowed at rape-murder trial since crimes were
       committed in similar geographic location, at similar time, characteristics
       of victim matched, and defendant used same method of attack). As was
       the case in Hughes, the similarities at issue herein were "not confined to
       insignificant details that would likely be common elements regardless of
       who committed the crimes." Id. At 1283.
Ml_At 1185-1186.
                   (.·                                                              Circulated 12/18/2015 09:59 AM
                   '·.




       In Commonwealth v. O'Brien, 836 A.2d 966 (Pa. Super. Ct. 2003), the Superior

Court reversed the holding of the trial court that evidence of a prior sexual assault of two

different minors years earlier was not admissible in a subsequent prosecution involving a

different victim. The Superior Court held that the following similarities of the three

assaults was sufficient to demonstrate a common plan or scheme: each boy was between

eight and eleven years old; each boy knew the defendant because their parent(s) were

friends with him; each crime was committed after the defendant was alone with the

victims - and in the defendant's home; the defendant showed each victim pornographic

material; each crime involved deviate sexual intercourse; and, in each case the defendant

instructed the victims not to tell anyone. Id. at 970.


                                       DISCUSSION


       Using the language of Aikens, supra., the issue here is whether there are

"matching characteristics [that] elevate the incidents into a unique pattern that

distinguishes them from a typical or routine child-abuse factual pattern;" or, whether the

similarities between the two allegations is "confined to insignificant details that would

likely be common elements regardless of who committed the crimes." There are

similarities between the Defendant's alleged conduct toward KRS and the current victim.

First, the two were roughly the same age when the Defendant made sexual advances

toward them. KRS was 15 or 16 when she first met the Defendant, she was

approximately 17 when he made advances toward her, and, the victim was 15 when the

Defendant sexually assaulted her. The Defendant provided marijuana to both girls and

"partied" with them before making sexual advances toward them. However, the specific

similarities were much greater in Aikens and O'Brien, supra. The Defendant here did not
                                                                                     ,····

                                                                                    1·.:·
                                                                                   Circulated 12/18/2015 09:59 AM




isolate KRS and the victim under almost identical manner in order to assault them

(Aikens: visits with daughters and then showed them pornographic material at his home;

O'Brien: befriended victims parents showed them pornographic material in his home).

Therefore, the Court was inclined to conclude that a "unique fact pattern" did not exist

here and any similarities between the two alleged incidents were common elements that

would exist regardless of who committed the crimes.


       However, the Defendant's alleged statements to each victim are extremely

probative on the "common plan or scheme" issue. The Defendant told KRS, both directly

and through his actions, that he was upset with her because "he did so much for me like

take me fishing and smoke weed with me and buy me things;" and, "for payment of all

that stuff he did for me that I should repay him with sex." The current victim asserts that

the Defendant told her that he "was always doing things for her" and that she should do

something for him and have sex with him. When the victim told him no the defendant

persisted repeating that "he does stuff for her and she should repay him." These

statements are extremely important to this analysis because, if proven, they are an actual

admission of a common plan or scheme. When the Defendant's statements are

considered with the other facts a clear plan and scheme emerges. The Court finds that the

Defendant had a plan to party with KRS and the victim, to give them marijuana, to take

them fishing and befriend them in return for sex because the Defendant said that that was

what his plan was. He told both KRS and the victim that he had put a lot of work into his

plan and was upset when it did not appear as if his efforts were going to yield the results

he had been working for. It is immaterial that the pressure he put on KRS did not result

in the Defendant obtaining his planned goal. The issue is whether the Defendant utilized
                  iI..                                                         Circulated 12/18/2015 09:59 AM




a common plan in both instances,not whether the plan yielded the result the Defendant

wanted in both cases. The Defendant is the best source to know whether he had a

common plan and scheme here. The fact that he said that there was cannot be ignored.

Therefore, we enter the following:
tC.   I   I   "

                                                                                                 Circulated 12/18/2015 09:59 AM




                  COMMONWEAL TH OF PENNSYLVANIA,                           IN THE COURT OF COMMON PLEAS

                                         Plaintiff                         OF McKEAN COUNTY, PENNSYLVANIA

                         vs.                                               CRIMINAL DIVISION

                  JEFFREY S. PINCHOCK,                                     NO. 225 C.R. 2013

                                           Defendant.




                                                             ORDER


                         AND NOW, this zs" day of November, 2013, the Commonwealth's Motion in

                  limine is granted and the Commonwealth is permitted to present the testimony of KRS

                  discussed in the Opinion filed contemporaneously with this order regarding prior

                  conduct.




                                                                             BY THE COURT:




                                                                            <c.. u\\.
                                                                                   Pu
                                                                                 (\t-Ql.o-\~)
                                                                                            Circulated 12/18/2015 09:59 AM




COMMONWEAL TH OF PENNSYLVANIA,                                          IN THE COURT OF COMMON PLEAS

                             Plaintiff                                  OF McKEAN COUNTY, PENNSYLVANIA

        vs.                                                             CRIMINAL DIVISION

JEFFREY SCOTT PINCHOCK,                                                 NO. 225 C.R. 2013

                              Defendant.




              DA Raymond Learn, Esq.                                            For the Plaintiff

              Stephanie L. Vettenburg-Shaffer, Esq.                             For the Defendant




                                             OPINION AND ORDER

        Defendant Jeffrey Pinchock was charged with Statutory Sexually Assault (Fl), Sexual

Assault (F2), Corruption of Minors-Sexual Nature (F3), Corruption of Minors (Ml), and

Indecent Assault (M2).1 The matter was tried before a jury. The Defendant was found not guilty

of Statutory Sexual Assault (Fl), Sexual Assault (F2), and Corruption of Minors-Sexual Nature

(F3). The Defendant was found guilty of Corruption of Minors (Ml) and Indecent Assault (M2).

Defendant filed a post-trial motion and the motion was denied.

        By order dated February 13, 2014, the Court ordered the Sexual Offender Assessment

Board ("SOAB") to conduct a sexually violent predator ("SVP") assessment of the Defendant.

A hearing was held on October 17, 2014. The matter is now ready for a decision.




1
 Count 1: Statutory Sexual Assault, 18 Pa. C.S. § 3122.1, Felony 1st Degree; Count 2: Sexual Assault, 18 Pa. C.S.
3124.1, Felony 2nd Degree; Count 3: Corruption of Minors of Sexual Nature, 18 Pa. C.S. § 630l(a)(l)(ii), Felony
3rd Degree; Count 4: Corruption of Minors, 18 Pa.C.S. § 630l(a)(l)(ii), Misdemeanor 1st Degree; Count 5:
Indecent Assault, 18 Pa.C.S. § 3 l 26(a)(l ), Misdemeanor 2nd Degree.
                                                                               Circulated 12/18/2015 09:59 AM




                                   APPLICABLE AUTHORITY

       As set forth in 42 PA C.S.A. § 9799.24, the Commonwealth may pursue a hearing where

the Court will determine if the defendant shall be classified as a sexually violent predator.   The

hearing shall be scheduled upon praecipe filed by the District Attorney.    The District Attorney

upon filing the praecipe shall serve a copy of same upon defense counsel together with a copy of

the report by the SOAB.

       Upon receipt from the court of an order for an assessment, a member of the board as

designated by the administrative        officer 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.




                                                  2
                                                                                    Circulated 12/18/2015 09:59 AM




                  (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 re-offense.

42 Pa. Cons. Stat. Ann. § 9799.24.

          The question for a court analyzing a SVP allegation is whether the Commonwealth's

evidence, including the state assessment 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. Commonwealth              v. Brooks, 7 A.3d 852, 860

(2010).

          With regard to the various statutory assessment factors for classification         of an SVP

mentioned above, there is no statutory requirement that all of them or any particular number of

them be present or absent in order to support an SVP designation. Id. After conducting a hearing

and considering      the evidence presented, the court decides whether a defendant should be

designated an SVP and thus made subject to the registration requirements in 42 Pa. C.S.A. §

9799.15. Id. at 863.




                                                     3
                                                                                       Circulated 12/18/2015 09:59 AM




            "An SVP assessment is not a trial or a separate criminal proceeding that subjects the

defendant to additional punishment." Commonwealth v. Howe, 842 A.2d 436, 445-46 (2004).

"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 is, in fact, an SVP."

Commonwealth v. Killinger, 888 A.2d 592, 600 (2005).

                                              DISCUSSION

            Defendant Pinchock was convicted of Corruption of Minors (Ml) 18 Pa.C.S.

§ 6301(a)(l)(ii)    and Indecent Assault (M2) 18 Pa.C.S. § 3126(a)(l) on December 10, 2013. Both

offenses are equivalent to what is called a Tier 1 offense.         An individual convicted of a Tier I

sexual offense, except an offense set forth in Section 9799. l 4(b )(23) (relating to sexual offenses

and tier system), shall register for a period of 15 years with the Pennsylvania                State Police

("PSP").      If a person is found to be a sexually violent predator, they must register with the PSP

for life.

            As stated above, the Court must decide whether the defendant is an SVP. The Court has

to review the Commonwealth's            evidence and may consider the report of the SOAB.                  The

Commonwealth's         expert, Brenda Mano, has substantial expertise regarding SVP evaluations.

She has been a SOAB Board member since 1998 and has had extensive schooling and training/

in psychology, sociology, licensed social work, assessing sexual offenders, child abuse, ethical

issues in the assessment         of sexual offenders, advanced forensic         interviews     training,   the

psychology       of criminal sexuality, and ethics concerns in sex offender commitment                in the

Commonwealth         of Pennsylvania.     Ms. Mano has been qualified as an expert and has done

2
    Examples under training section for Brenda A. Manno MSW, LCSW (Comm. Exhibit 2).




                                                      4
                                                                                                 Circulated 12/18/2015 09:59 AM




approximately        1,401    assessments     of which 925 for SVP and the remaining for pre-parole

assessments.       However, the court must make the determination whether the Defendant meets the

requirements for SVP status and cannot blindly accept any expert's conclusions on this issue.

           In this case, numerous          concerns were raised regarding Ms. Mano's                  opinion.       For

example, despite the fact a trial transcript was readily available on January 2, 2014, she did not

review it and instead reviewed the preliminary hearing transcript.                        Further, she incorrectly

concluded that the Defendant had been convicted of corruption of a minor of a sexual nature

when in fact the Defendant was not convicted of this offense.                       Therefore, factually she had

concluded that the Defendant had sexual intercourse with the victim when the jury rejected this

assertion.3      Ms. Manno stated that, considering all the correct information regarding what the

Defendant was found guilty of, etc., it would not change her opinion of the classifying the

Defendant as an SVP.

           The concerns regarding the basis for Ms. Manna's conclusions/opinion initially caused

the Court hesitation. However, after a review of the known facts in this case the Court finds that

the Defendant is a Sexually Violent Predator. The Defendant does have a prior criminal history

that involved crimes of a sexual nature. He pied guilty to Count 1: Statutory Sexual Assault 18

Pa. C.S. § 3122.1 and Count 2: Corruption of Minors 18 Pa.C.S. § 630l(a)(l)(ii) in 1997.4

Therefore, he has a clear pattern of victimization that suggests that he could be a danger to others

and specifically to young girls who are under the age of 18. A consideration of the facts of his


3
 By convicting the Defendant of counts of Corruption of Minors (Ml) 18 Pa.C.S. § 630l(a)(l)(ii) and Indecent
Assault (M2) 18 Pa.C.S. § 3126(a)(l), the Jury concluded that the Defendant had inappropriately touched the victim
for sexual gratification but rejected the assertion that sexual intercourse had occurred.
4
    There is no record that the Defendant received any treatment as part of his sentence for his 1997 convictions.




                                                            5
                                                                                   Circulated 12/18/2015 09:59 AM




current and previous convictions reveal that the Defendant uses his influence to obtain sexual

favors.    He developed a friendship and trust with the victims and offered them marijuana to

persuade them to go along with his requests.       Further, the Court accepts Ms. Manno' s opinion

that the Defendant has a congenital or acquired condition which is the impetus to the sexual

offending that he takes part in, and this is a lifetime condition.         The Court finds that the

Defendant has a very high likelihood of re-offending.

          Therefore, the Commonwealth has proven the defendant is a sexually violent predator by

clear and convincing evidence.        Pa. C.S.A. 9799.24(e).     Although Ms. Manno's report was

inaccurate in some respects, the Court still accepts Ms. Manno' s opinion as accurate.             "The

SOAB merely         assesses   the defendant;   it does not perform       an adjudicative    function."

Commonwealth v. Prendes, 97 A.3d 337, 357 (2014) citing Commonwealth v. Kopicz, 840 A.2d

342, 351 (2003). In Prendes, the Superior Court held:

          [A]n SOAB expert assessment falls under the general rules regarding expert witnesses
          and may be based on facts or data that the expert has been made aware of or personally
          observed, so long as experts in the particular field reasonably rely on those kinds of facts
          or data in forming an opinion on the subject; the facts or data consulted need not be
          admissible or proved beyond a reasonable doubt in order to find the expert opinion
          admissible.

Prendes, 337 at 363.




                 WHEREFORE,we enterthe following:




                                                    6
                                                                                      (-.
                                                                                  Circulated 12/18/2015 09:59 AM




COMMONWEAL TH OF PENNSYLVANIA,                                IN THE COURT OF COMMON PLEAS

                        Plaintiff                             OF McKEAN COUNTY, PENNSYLVANIA

       vs.                                                    CRIMINAL     DIVISION

JEFFREY SCOTT PINCHOCK,                                       NO. 225 C.R. 2013

                        Defendant.




                         ~
       AND NOW this _U'l__
                             ,~           ORDER

                              day of November, 2014, upon consideration of the Defendant and

Commonwealth's briefs following the hearing on Sexually Violent Predator Status as well as the

Opinion filed contemporaneously with this Order, the Court ORDERS the following:

       1. The Commonwealth has met its burden and the Defendant is classified as a

       Sexually Violent Predator.



                                                  BY THE COURT:




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