J-S47030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA


                       v.

EARL KOZICH

                            Appellant                  No. 1866 MDA 2014


          Appeal from the Judgment of Sentence September 30, 2014
               In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0002133-2012


BEFORE: ALLEN, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                               FILED AUGUST 21, 2015

        Earl Kozich appeals from the judgment of sentence imposed on

September 30, 2014, in the Court of Common Pleas of Luzerne County,

following the acceptance of a negotiated guilty plea1 to one count of

aggravated indecent assault.2             Per the plea agreement, Kozich was

sentenced to a term of four to eight years’ incarceration.         Kozich was

evaluated by the Sexual Offenders Assessment Board (SOAB), a hearing was

held on September 30, 2014, at which time Kozich was found to be a

sexually violent predator (SVP), and sentence was formally imposed. In this

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    The docket reflects the guilty plea was entered on February 24, 2014.
2
    18 Pa.C.S. § 3125(b).
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timely appeal, Kozich raises one issue: He claims the trial court erred in

determining he was a sexually violent predator.    The trial court found the

issue waived based upon an improperly vague Pa.R.A.P. 1925(b) statement.

Following our review of the certified record, the submissions by the parties

and relevant law, we affirm.
      Our standard of review is well settled:

      The determination of a defendant's SVP status may only be
      made following an assessment by the [Sexual Offenders
      Assessment Board (“SOAB”)] and hearing before the trial court.
      In order to affirm an SVP designation, we, as a reviewing court,
      must be able to conclude that the fact-finder found clear and
      convincing evidence that the individual is a sexually violent
      predator. As with any sufficiency of the evidence claim, we view
      all the evidence and reasonable inferences therefrom in the light
      most favorable to the Commonwealth. We will reverse a trial
      court's determination of SVP status only if the Commonwealth
      has not presented clear and convincing evidence that each
      element of the statute has been satisfied.

      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.”

Commonwealth v. Morgan, 16 A.3d 1165, 1168 (Pa. Super. 2011)

(citation omitted).




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      The record reveals that for a period of some months, Kozich digitally

penetrated the genitals of his girlfriend’s nine-year-old daughter.           He

admitted his actions to the police and additionally pled guilty to the single

count of aggravated indecent assault as noted above.        In addition to the

assessment    by   the   SOAB,   Kozich   was   also   examined   by   his   own

psychologist, Dr. Frank Dattilio, Ph.D. After hearing the evidence, the trial

court determined the Commonwealth had proven by clear and convincing

evidence that Kozich was a sexually violent predator.

      Kozich appealed and filed his Pa.R.A.P. 1925(b) Statement of Matters

Complained of on Appeal on December 12, 2014. In relevant part, Kozich

claimed: “Defendant now alleges that he did not meet the criteria set forth

in 42 Pa.C.S. § 9799.10 et seq. identifying him as a Sexually Violent

Predator.”   The trial court determined this statement was impermissibly

vague and did not provide a sufficient basis for review.

      We note that to prove a defendant is an SVP, the Commonwealth is

required to prove by clear and convincing evidence the defendant has a

mental abnormality or personality disorder that makes that person likely to

engage in predatory sexually violent offenses.         See Commonwealth v.

Feucht, 955 A.2d 377, 380 (Pa. Super. 2008). Additionally, the SOAB must

consider a variety of statutory factors in making its determination. See 42

Pa.C.S. § 9799.24. The factors listed in the statute are non-exclusive. We

note this to demonstrate the broad possibilities available to determine SVP


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status.   Accordingly, a generic challenge to the sufficiency of evidence in

proving SVP status provides no actual guidance for review.                See

Commonwealth v. Reeves, 907 A.2d 1 (Pa. Super. 2006) (If a Rule

1925(b) statement is too vague, the trial judge may find waiver and

disregard any argument.) Even if the claim had been preserved, we would

be unable to review it, as the notes of testimony from the SVP hearing were

not included in the certified record. Because we find no abuse of discretion

or error of law in the trial court’s finding of waiver, we affirm the judgment

of sentence.

      Judgment of sentence affirmed.




      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2015




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