J-S58038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ROBERT HABERMAN

                            Appellant                No. 545 MDA 2015


             Appeal from the Judgment of Sentence March 6, 2015
               In the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0000076-2012


BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                      FILED OCTOBER 19, 2015

        Appellant, Robert Haberman, appeals from the judgment of sentence

entered in the Franklin County Court of Common Pleas, following his

negotiated guilty plea to rape.1 We affirm.

        The relevant facts and procedural history of this case are as follows.

Appellant sexually abused his stepdaughter (“Victim”) from approximately

2001 until 2007, when she was twelve (12) to eighteen (18) years old.

Victim reported the abuse in 2011, and the Commonwealth subsequently

charged Appellant on February 27, 2012, with rape by forcible compulsion,

sexual assault, statutory sexual assault, endangering welfare of children,

____________________________________________


1
    18 Pa.C.S.A. 3121(a)(1).


_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-S58038-15


involuntary     deviate    sexual    intercourse   by   forcible   compulsion,   and

aggravated indecent assault without consent.               On August 14, 2014,

Appellant entered a negotiated guilty plea to one count of rape by forcible

compulsion.      The court deferred sentencing, pending an assessment of

Appellant by the Sexual Offenders Assessment Board (“SOAB”) and a

sexually violent predator (“SVP”) hearing. On March 6, 2014, the court held

a SVP hearing, determined Appellant was a SVP, and sentenced Appellant to

sixty (60) to two hundred and forty (240) months’ imprisonment.

        On March 16, 2015, Appellant filed a timely post-sentence motion,

which the court denied on March 26, 2015. On March 27, 2015, Appellant

filed a timely notice of appeal. The court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

and Appellant timely complied on April 1, 2015.

        Appellant raises the following issues for our review:

           DID THE TRIAL COURT ERR OR ABUSE ITS DISCRETION IN
           CLASSIFYING [APPELLANT] AS A SEXUALLY VIOLENT
           PREDATOR WHEN THE ONLY “MENTAL ABNORMALITY OR
           PERSONALITY DISORDER” PRESENTED WAS A DIAGNOSIS
           OF HEBEPHILIA, WHICH IS NOT GENERALLY ACCEPTED BY
           THE SCIENTIFIC COMMUNITY AS A MENTAL ABNORMALITY
           AND IS NOT A RECOGNIZED MENTAL DISORDER?

           DID THE TRIAL COURT ERR BY DENYING [APPELLANT’S]
           REQUEST FOR A FRYE[2] HEARING TO DETERMINE
           WHETHER HEBEPHILIA IS A GENERALLY ACCEPTED
           DIAGNOSIS WITHIN THE MENTAL HEALTH COMMUNITY
____________________________________________


2
    Frye v. U.S., 293 F 2013 (D.C.Cir. 1923).



                                           -2-
J-S58038-15


         AND BY STATING THAT A FRYE HEARING WOULD HAVE
         BEEN UNNECESSARY BECAUSE THE COURT ALREADY
         DETERMINED, WITHOUT A HEARING, THAT THE GENERAL
         SCIENTIFIC COMMUNITY HAS REACHED A GENERAL
         ACCEPTANCE OF HEBEPHILIA AS A DIAGNOSIS EVEN
         THOUGH HEBEPHILIA IS NOT A RECOGNIZED MENTAL
         DISORDER?

(Appellant’s Brief at 12).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Carol L. Van

Horn, we conclude Appellant’s issues on appeal merit no relief.      The trial

court opinion comprehensively discusses and properly disposes of the

questions presented. (See Trial Court Opinion, filed May 22, 2015, at 3-14)

(finding: (1) as member of SOAB, Mr. Hays completed expert assessment of

Appellant and testified on behalf of Commonwealth at SVP hearing; Mr. Hays

testified SOAB generally concurs that hebephilia, defined as sexual attraction

to post-pubescent children, is viable mental abnormality for purposes of SVP

determination, even though it is absent from Diagnostic and Statistical

Manual of Mental Disorders; in Commonwealth v. Hollingshead, 111 A.3d

186 (Pa.Super. 2015), Superior Court held that hebephilia diagnosis,

combined with expert testimony and facts of case, satisfies mental

abnormality requirement necessary for SVP determination; Mr. Hays stated

Appellant’s sustained sexual urges toward twelve-year-old child supports

finding that Appellant suffers from hebephilia; Mr. Hays opined certified

record does not contain evidence of other motivation for sexual abuse, so


                                    -3-
J-S58038-15


only explanation for Appellant’s behavior is hebephilia diagnosis; Mr. Hays

also found relevant to SVP determination Appellant’s use of threats to

achieve offense, Appellant’s relationship with Victim as stepfather, and

nature of Appellant’s sexual contact with Victim; after analyzing all statutory

factors, Mr. Hays concluded facts of case supported conclusion that

Appellant is SVP; therefore, Commonwealth presented clear and convincing

evidence to classify Appellant as SVP; (2) scientific evidence was not novel,

because hebephilia is viable mental disorder in field of sexual offender

assessment;    in   Hollingshead,        Superior    Court   held   that   hebephilia,

combined with expert testimony and facts of case, can satisfy mental

abnormality requirement for purposes of SVP determination; moreover,

court already addressed whether hebephilia constitutes novel science

because    majority   of     testimony    at   SVP   hearing   discussed     scientific

community’s acceptance of hebephilia; thus, court did not err in denying

Appellant’s request for Frye hearing). Accordingly, we affirm on the basis of

the trial court’s opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/19/2015

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       IN THE COURT OF COMMON PLEAS OF THE 39m JUDICIAL DISTRICT
               OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH


Commonwealth           of Pennsylvania,                                  CRIMINAL ACTION

                 vs.                                                     No: 76-2012

Robert Haberman,
                         Defendant                                       Honorable Carol L. Van Horn

                                       STATEMENT OF THE CASE

         On August 14, 2014, the above-captioned Defendant, Robert Haberman, pled guilty to

one count of rape.1 Because rape is a sexually violent offense under 42 Pa.C.S. § 9799.14, the

Defendant was ordered to be assessed by the State Sexual Offender's Assessment Board,

(SOAB) pursuant to 42 Pa.C.S. § 9799.24.2 Herbert Edwin Hays was appointed by the SOAB to

evaluate the Defendant, and testified as an expert in the area of sexual offender assessment,

treatment, and management. At the time of the hearing, Mr. Hays had worked for the SOAB for

17 years, and had conducted approximately 1175 sexually violent predator (SVP) assessments.

On October 23, 2014, the Defendant filed a Petition for Appointment of Defense Expert for SVP

Hearing and this Court granted the Petition the following day. The Defendant retained Timothy

P. Foley, Ph.D., for an evaluation and Dr. Foley also testified as an expert in the area of sexual-

offender treatment and assessments. At the time of the hearing, Dr. Foley had worked in the field

of sexual offender treatment and assessments for 25 years and had conducted roughly 1500 SVP

assessments.


1
  18 Pa. C.S. § 3121.
2
  "(a) Order for assessment.--After conviction but before sentencing, a court shall order an individual convicted of a
sexually violent offense to be assessed by the board. The order for an assessment shall be sent to the
administrative officer of the board within ten days of the date of conviction for the sexually violent offense. (bl
Assessment.--Uponreceipt 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." 42 Pa.C.S. § 9799.24.

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           On March 6, 2015, a hearing was held to determine if the Defendant was a SVP.

Ultimately, Mr. Hays concluded that the Defendant met the criteria to warrant classification as a

SVP and this Court agreed and adjudicated the Defendant as a SVP pursuant to 42 Pa.C.S. §

9799.10 et seq. The determination was reduced to an Order of the Court on that same date and

the Defendant was subsequently sentenced to 60 to 240 months in a State Correctional Institution

with credit for time served. Defendant filed a timely Post-Sentence Motion on March 16, 2015.

On March 26, 2015, this Court denied the Motion by Order of Court. Defendant filed a Notice of

Appeal on March 27, 2015, and his Concise Statement of Matters Complained of on Appeal on

April 1, 2015.

                                                   ISSUES RAISED

           Defendant raises the following issues in his Concise Statement:"

       1. Whether the trial court erred by denying Defendant's request for a Frye hearing to
          determine whether hebephilia is a generally accepted diagnosis within the mental health
          community and by stating that a Frye hearing would have been unnecessary because the
          Court already determined, without a hearing, that the general scientific community has
          reached a general acceptance ofhebephilia as a diagnosis?

       2. Whether the trial court erred or abused its discretion in classifying Defendant as a
          sexually violent predator?




                                                 DISCUSSION

      I.       Legal Standard

           A trial court's determination of SVP status will be reversed on appeal only where the

Commonwealth has not presented clear and convincing evidence sufficient to determine each

statutory element has been satisfied.          See Commonwealth v. Krouse, 799 A.2d 835, 838 (Pa.

Super. Ct. 2002). Clear and convincing evidence in the context of a Meagan's Law determination

3
    Concise Statement of Errors Complained ofon Appeal, 4/1/15.
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is evidence "so clear, direct, weighty and convincing" as to enable the Court "to come to a clear

conviction, without hesitancy, of the truth of the precise facts at issue."      Commonwealth v.

Maldonado, 838 A.2d 710, 715 (Pa. 2003). Thus, in evaluating a trial court's SVP classification,

the Superior Court's scope of review is plenary. Commonwealth v. Dixon, 907 A.2d 533, 535

(Pa. Super. 2006). In Dixon, the Superior Court stated:

               [W]e 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
               has been satisfied. The evidence must be viewed in the light most
               favorable to the Commonwealth. The reviewing court may not
               weigh the evidence or substitute its judgment for that of the trial
               court. 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.

Dixon, 907 A.2d at 535 (quoting Commonwealth v. Plucinski, 868 A.2d 20, 25 (Pa. Super. 2005)

(citations and quotations omitted)).

       When determining whether a defendant should be classified as a sexually violent

predator, a SOAB expert conducts an assessment of the defendant.

               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.

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                       (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.C.S. § 9799.24(b).

The purpose of the SOAB expert's assessment is to determine whether the defendant meets the

statutory requirements for sexually violent predator status. Dixon, 907 A.2d at 536. The proper

inquiry is "whether he or she suffers from 'a mental abnormality or personality disorder that

makes [him or her] likely to engage in predatory sexually violent offenses.'"     Commonwealth v.

Fuentes, 991 A.2d 935, 943 (Pa. Super. 2010) (citations omitted). "Mental abnormality" is "[aJ

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; Commonwealth v. Meals, 912 A.2d 213, 218 (Pa. 2006) (citations                    omitted).

"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."   42 Pa.C.S. § 9799.12; Meals, 912 A.2d at 218-19.

       After the expert completes an assessment, the Commonwealth may schedule a hearing to

determine a defendant's SVP status. Meals, 912 A.2d at 218. As noted above, at the hearing, the

Commonwealth has the burden of showing by clear and convincing evidence that the defendant



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is a SVP.     42 Pa.C.S. § 9799.24(e).     Further, the trial court has the ultimate authority to

determine whether the Commonwealth has met that burden. Krouse, 799 A.2d at 839.

         Often when determining whether to classify an offender as a SVP, the court will consider

expert psychological and psychiatric testimony on the questions of "sexually violent predator"

and "mental abnormality." Commonwealth v. Dengler, 843 A.2d 1241 (Pa. Super. 2004). The

Superior Court has held that a Frye hearing is not necessary when this testimony is used to

determine whether a sex offender met the criteria for a SVP because it is not novel scientific

evidence. Id. A Frye hearing is a hearing held for the trial court to determine whether the general

scientific community has reached a general acceptance of the principles and methodology used

by the expert witness. Frye v. United States, 293 F. 1013 (D.C.Cir.1923). Novel scientific

evidence is inadmissible if the methodology that underlies the evidence is not generally accepted

in the relevant community. Commonwealth v. Walker, 92 A.3d 766, 789 (Pa. 2014).

   II.      Analysis

            A. Mental Abnormality

         In his first argument, Defendant correctly recognizes that a SVP determination requires

a showing that the Defendant suffers from a mental abnormality or personality disorder.

Defendant contends that hebephilia is not a recognized mental disorder because there is debate

within the scientific community as to whether hebephilia is a valid diagnosis. Consequently,

Defendant concludes that a hebephilia diagnosis is insufficient to satisfy the mental abnormality

or personality disorder required for a SVP determination. Based on this, Defendant concludes

that this Court should have held a Frye hearing to determine the reliability of the Defendant's

hebephilia diagnosis. Defendant's second issue is essentially a sufficiency of the evidence

challenge which also alleges that because hebephilia is not a recognized mental disorder there



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was no showing made that the Defendant suffered from a mental abnormality or personality

disorder. As such, the Court will address both issues simultaneously.

           Preliminarily, it was conceded at the hearing that the Defendant committed an

enumerated offense that requires a SVP determination.4 It was also conceded at the hearing that

the Defendant's behavior was predatory. Therefore, we tum to the question of whether the

Defendant suffers from a mental abnormality or personality disorder that makes him likely to

engage in predatory sexually violent offenses. First we must determine whether the Defendant

actually suffers from hebephilia before deciding whether this diagnosis is sufficient to satisfy the

mental abnormality requirement of a SVP determination.

            Less than three (3) weeks before the hearing, the Superior Court precisely addressed the

second issue before this Court. In Commonwealth v. Hollingshead, 111 A.3d 186 (Pa. Super.

2015), the Superior Court held that a trial court may conclude based on the facts of the case and

expert testimony, that a hebephilia diagnosis satisfies the mental abnormality requirement for

purposes of a SVP determination.

           In Hollingshead the defendant pled guilty to one count of corruption of minors and

institutional sexual assault. Id. at 189. Following a hearing and briefs, the trial court ultimately

designated the Defendant a SVP and she appealed. Id. The defendant challenged the sufficiency

of the evidence relating to her SVP determination. Specifically, and identical to the instant

matter, the defendant argued that the mental abnormality relied upon by the Commonwealth and

its expert, hebephilia, was not a recognized mental disorder. Id. Further, the defendant contended

that the testimony of her expert, Dr. Timothy Foley, illustrated that she did not suffer from a

mental abnormality. Id. It is notable that Dr. Foley was also the Defendant's expert in the case at

bar and testified that the Defendant did not suffer from a mental abnormality.

4
    Defendant pied guilty to rape pursuant to 18 Pa. C.S. § 3121. (enumerated offense under 42 Pa. C.S. § 9799.14).

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        Preliminarily, this Court believes the testimony at the hearing clearly illustrates that the

Defendant suffers from hebephilia. The Hollingshead Court noted that hebephilia is not a listed

disorder in the fourth or fifth edition of the Diagnostic and Statistical Manual of Mental

Disorders. ("DSM"). This was also conceded by both experts in the instant matter. See N.T.

3/6/15 at 18-19, 52-53. Despite being absent from the DSM-5, the Commonwealth's expert

witness, Mr. Hays testified at the hearing that the SOAB "generally concurs that hebephilia is a

viable paraphilia even though it's not in the DSM-5." N.T. 3/6/15 at 18-19. Further, it is clear

that "[t]he statute does not require proof of a standard of diagnosis that is commonly found

and/or accepted in a mental health diagnostic paradigm. Id. quoting Commonwealth v. Lee, 935

A.2d 865 (Pa. 2007). At the hearing, /J\(.Hays testified:

       A: Yes. We are guided by the statute.

       Q: Does the statute require any diagnosis?

       A: No, the statute does not require a psychological or psychiatric diagnosis. It's a
       statutory definition. And while we do look at the DSM as a way of pinning, I don't know
       how put it, but pinning the disorder we must take into consideration the entire history of
       what occurred.


N.T. 3/6/15 at 20-21.

Similar to Hollingshead, Mr. Hays testified generally that the definition ofhebephilia includes a

sexual attraction to a post pubescent child. Id. at 19. This age range would be roughly between

11 and 15 years old. Id. Specifically regarding the Defendant, Mr. Hays testified on cross

examination that:

               Q: Is it possible in your opinion that the motivation for the sexual
               offending was something other than a psychiatric disorder?

               A: I don't believe the record would support that, that conclusion. I
               believe the record supports the fact that Mr. Haberman showed
               sexual urges towards this child when she was 11 or 12 years old


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                and he followed through with that, he continued to follow
                through with that for six, seven years. I don't see any other
                explanation that I could find in the record for the behavior.
                ( emphasis added).

Id. at 33.

The Defendant provided minimal evidence at the hearing disputing that he actually suffered from

hebephilia. Rather, the Defendant's expert Dr. Foley testified that hebephilia is not widely

accepted and because it is not included in the DSM-5, the diagnosis essentially does not exist.

Given that the Hollingshead Court has already recognized that hebephilia exists, we have little

trouble concluding that the Commonwealth sufficiently proved at the hearing that the Defendant

suffers from hebephilia.

        With that initial concern resolved, we tum to the core question before this Court which is

whether a hebephilia diagnosis is sufficient to satisfy the mental abnormality or personality

disorder requirement. Defendant contends that hebephilia is not a recognized mental disorder and

that there is debate in the scientific community as to whether hebephilia is a valid diagnosis. This

is the basis of Defendant's argument that a Frye hearing should have been conducted and his

sufficiency of the evidence challenge. As noted, the Hollingshead Court directly resolved this

issue less than three weeks before the hearing in this case. The Hollingshead Court held that a

hebephilia diagnosis is sufficient for the trial court to find a mental abnormality if it is supported

by expert testimony and the facts in the case. Further, this holding is consistent with decisions

from various other states. See New Yorkv. Shannon S., 980 N.E. 2d 510, 514-515 (2012), see

also Wamstad v. Corman, 845 N.W.2d 335 (N.D. 2014), see also Massachusetts v. McKinley, 5

N.E.3d 2 (table) (2014). This Court believes that the testimony of Mr. Hays was more than

sufficient to find that the Defendant's hebephilia diagnosis constituted a mental abnormality. For

example, at the hearing    Ni.I. Hays testified:

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        Q: So regarding a paraphilic disorder or paraphilia,   it's your assessment the Defendant
        does have that disorder or abnormity?

        A: Yes. Based upon the scientific evidence, not based on whether the DSM-5 has
        determined [hebephilia is] a paraphilia or not. It's scientific evidence and the evidence
        the professionals in the field use to determine whether it is paraphilia or not. And
        hebephilia by the board standards is a paraphilia. It makes a person likely to
        commit sexually violent offenses in the future. (emphasis added).



        Q: Okay. Now, as an expert in the field and as a board member, how does that
        abnormality, specifically hebephilia, relate to your assessment regarding [the
        Defendant's] status as a sexually violent predator?
        A: I believe he meets the mental abnormality as paraphilia. It has no cure. It's a
        lifetime disorder. (emphasis added)

N.T. 3/6/15 at 21-22.

       Additionally, the decision in Hollingshead directly conflicts with much of the testimony
provided by Dr. Foley at the hearing. Specifically, Dr. Foley testified:

        Q: Do you agree that while-let me ask you, are you saying that hebephilia, essentially
        for you as a clinical psychologist, doesn't exist because it's not in the DSM-5?

        A: It's not widely accepted. You know, hebephilia had its day in court over the last
        couple of years where there was vigorous debate. And it failed. It was rejected. And
        there's no mention of it. There's no hint of it. There's not even any mention of
        adolescents.

        I respect Mr. Hays' opinion. And I respect, you know, his references to Dr. Blanchard.
        But Dr. Blanchard has an opinion. And the rest of the community-maybe I shouldn't
        say it that way. I'm sure there are adherents to Blanchard's position. But they failed.

Id. at 64-65.

Although Dr. Foley may very well be correct that hebephilia was not successful in the debate

about whether it should be included in the DSM-5, it is unequivocally clear that the Hollingshead

Court and courts in sister states have found that hebephilia can be sufficient to satisfy the mental

abnormality or personality disorder for a SVP determination. This Court finds that the expert

testimony provided by Mr. Hays at the hearing was sufficient to find that the Defendant suffered



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from a mental abnormality. Consequently, a Frye hearing in this matter was unnecessary as the

scientific evidence was not novel because the Superior Court has already held that hebephilia can

be a sufficient basis for a finding of a mental abnormality. Furthermore, the majority of the

testimony provided at the hearing between the two experts dealt with the issue of whether

hebephilia is generally accepted in the scientific community. Therefore, the substantive issue that

a Frye hearing would have resolved was properly addressed at the hearing in this case.

        B. Statutory Factors

        Next, this Court turns to the 15 statutory factors we must consider. See 42 Pa.C.S. §

9799.24(b). At the hearing Mr. Hays testified in support of his recommendation, made to a

reasonable degree of professional certainty, that the Defendant met the statutory criteria of a

SVP. Regarding the first factor, it is clear that this case involves only one victim.5 As to the

second factor, Mr. Hays testified that although the Defendant did not use unnecessary violence to

achieve the offenses, he did use other force that exceeded the means necessary such as

preventing the victim from leaving, threatening her and her family, and threatening to kick her

out of the house if she told anyone. 6 Regarding the third factor, the nature of the sexual conduct

was forced penis-vaginal intercourse, forced fellatio, oral sex, fondling, and digital penetration of

the victim's vagina all of which occurred for roughly six years.7 The fourth factor in this case

was particularly concerning as the Defendant was the victim's stepfather which gave him

significant control over the victim which he consistently exploited. 8 Fifth, the abuse began when



5
  However, as our Superior Court has stated, "the fact that Appellant sexually abused only one child, his
[grand]daughter," does not "undermine" such a determination, particularly considering "the predatory nature of
[Defendant's] behavior and the numerous acts, over a period of years, perpetrated upon_ the victim against her
will." Commonwealth v. W.H.M., Jr., 932 A.2d 155, 166 (Pa. Super. 2007).
6
  N.T. 3/6/15 at 14.
7
  Id. at 15.
8
  Id. at 15-16.

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                                                                                                 9
the victim was 12 years old and lasted roughly until she was 18 or 19 years old. Mr. Hays was

unable to conclude whether the sixth factor, displaying unusual cruelty during the commission of

the offense, was a factor in the offenses.l"

        Regarding the seventh factor, although the victim had normal mental capacity, the

Defendant did use the vulnerability of their family relationship to abuse her .11 As to the eighth,

ninth, and tenth factors, the Defendant had no prior offenses or sex offender treatment programs
                                           12
and just one prior criminal offense.            Regarding the eleventh factor, the Defendant is currently 5 5

years old. As to the twelfth factor, there was no clear indication that the Defendant used illegal

drugs during the time of the offenses." The thirteenth factor, whether the Defendant suffers from

a mental abnormality, was discussed at great lengths above and this Court concludes that the

Defendant's diagnosis ofhebephilia is sufficient to show he suffers from a mental abnormality.

As to the fourteenth factor, the Defendant's behavioral characteristics that contributed to his

conduct were repeated sexual deviance towards a post pubescent juvenile female that he had the

opportunity to sexually assault whenever he desired.14 Additionally, this Court finds that there

are no other circumstances relevant to the SVP inquiry. Finally, Mr. Hays testified that because

hebephilia has no cure, it is a lifetime condition, and the Defendant is likely to reoffend given the

opportunity.

        As highlighted, the Defendant presented testimony of Dr. Foley to rebut the testimony of

Mr. Hays. However, a majority of Dr. Foley's testimony was consistent with the conclusions of


9
  Id. at 16.
10
   Id. at 16-17.
11
   N.T. 3/6/15 at 17.
12
   Id. The Defendant's prior criminal offense was a drug conviction.
13
   Although there were no official reports of illegal drug use by the Defendant, Mr. Hays did include in his report
that the victim's diary indicated that the Defendant smoked marijuana in the family home and attempted to get
her to smoke marijuana and drink alcohol in the family home. Com. Exhibit# 1 at 5.
14
   Com. Exhibit# 1 at 5.

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Mr. Hays regarding the fifteen statutory factors. The major difference in Dr. Foley's testimony

was regarding factor thirteen, whether the Defendant suffered from a mental abnormality. This

issue has been exhaustively discussed and resolved above. Further, the remaining portions of Dr.

Foley's testimony dealt primarily with the Defendant's risk of recidivism.

       After hearing testimony, this Court noted the Hollingshead opinion and stated:

               The Court: The mental abnormality requirement is satisfied with
               the determination that [the Defendant] does have a condition which
               is the impetus to his sexual offending; that it is a lifetime
               condition; and that the condition overrode his ability to control it
               volitionally.



               And I'll note from the Hollingshead opinion that was filed
               February 19th of this year, the Superior Court clearly stated that,
               first, recognized that there is a debate about hebephilia and their
               use in SVP proceedings but said it goes to the weight of the expert
               witness's testimony.

               The Superior Court concluded that a trial court may conclude
               based upon the expert testimony and facts in a given case a
               hebephilia diagnosis is sufficient to find that mental abnormality.
               That's what I am finding today based on the testimony and report
               of Mr. Hays who's [sic] considered the statutory factors also in his
               encompassing conclusion that Mr. Haberman meets the
               requirement for sexually violent predator designation.

               I also rely on the language in Hollingshead that noted Dr. Foley's
               report in that case was lacking with his focus on the risk of
               recidivism and that focus was misplaced. The risk of reoffending is
               but one factor to be considered when making an assessment. It's an
               independent element.

               So again I emphasize encompassing the opinion of Mr. Hays in
               looking at all the factors in reaching the conclusion that the
               Commonwealth has met its burden. So [ the Defendant] will be
               designated a sexually violent predator and requested to register as
               such.

N.T. 3/6/15 at 78-80.



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Accordingly, this Court credited the written report and testimony of Mr. Hays and did not find

the testimony of Dr. Foley regarding whether Defendant suffered from a mental abnormality and

his risk of recidivism to be convincing or compelling.

       This Court did not err in classifying the Defendant as a SVP. The Commonwealth

presented clear and convincing evidence to conclude the Defendant suffers from "a mental

abnormality or personality disorder that makes [him] likely to engage in predatory sexually

violent offenses." Fuentes, 991 A.2d at 943 (citations omitted). This Court believes that

pursuant to the decision in Hollingshead, that the expert testimony and facts in the instant matter

were sufficient to find that Defendant's hebephilia diagnosis constituted a mental abnormality.

Furthermore, Mr. Hays' analysis of the fifteen statutory factors was credible and supports the

determination that the Defendant is a SVP.


                                          CONCLUSION

       Pursuant to its authority, this Court did not err when it found the Defendant to be a

sexually violent predator as the classification was based on clear and convincing evidence.

Further, this Court did not err by failing to hold a Frye hearing in this matter. For all the reasons

stated herein, this Court respectfully requests that the Superior Court dismiss the appeal of the

Defendant.




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                         IN THE COURT OF COMMON PLEAS
                  OF THE 39111 JUDICIAL DISTRICT OF PENNSYLVANIA
                             FRANKLIN COUNTY BRANCH

Commonwealth of Pennsylvania,                               CriminalAction/

                                                            No. 76-2012
                vs.


Robert Haberman,
                         Defendant                          Honorable Carol L. Van Horn


                                           ORDER OF COURT

        AND NOW THIS             JJ~ day of May, 2015, pursuant to Pa.R.A.P.193l(c),

        IT IS HEREBY ORDERED that the Clerk of Courts of Franklin County
shall promptly transmit to the Prothonotary of the Superior .Court the record in this matter
along with the attached Opinion sur Pa.R.A.P. 1925(a).



         Pursuant to Pa.R. Crim P. 114, the Clerk of Courts shall immediately docket this Opinion
and Order of Court and record in the docket the date it was made. The Clerk shall forthwith
furnish a copy of the Opinion and Order of Court, by mail or personal delivery, to each party or
 attorney, and shall record in the docket the time and manner thereof




                                                            By the Court,




                                                            Carol L. Van Hom, J.


copies:
Matthew D. Fogal, Esq., Franklin County District Attorney
Tammy Dusharm, Esq., Counsel for Defendant




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                     Robert Haberman




                       76-2012



May 22, 2015, I Martha Burkholder,     served a copy of the Order signed

May 22, 2015 by Judge Van Hom on the following persons by the stated method.




Interoffice Mail: Franklin County District Attorney's Office, Public Defender's Office




                                         \rv\.ru t!hAU\    1   J   ~L_Deputy          Clerk
