J. S91013/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                     v.                   :
                                          :
MARTIN SCHWEIKERT,                        :          No. 947 MDA 2016
                                          :
                          Appellant       :


             Appeal from the Judgment of Sentence, May 23, 2016,
                in the Court of Common Pleas of Berks County
               Criminal Division at No. CP-06-CR-0003232-2015


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED FEBRUARY 14, 2017

        Martin Schweikert appeals from the judgment of sentence of May 23,

2016, following his conviction of one count each of involuntary deviate

sexual intercourse (“IDSI”)1 and indecent assault.2 We affirm.

        The trial court has summarized the procedural history of this matter as

follows:

                    [Appellant] was charged with Rape, four
              counts of [IDSI], four counts of Indecent Assault,
              two counts of Endangering Welfare of Children and
              two counts of Corruption of Minors, arising from
              incidents alleged to have occurred between
              January 7, 1995, and December 31, 200[5]. On
              October 13, 2015, Appellant entered a [negotiated]


* Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. § 3123(a)(6).
2
    18 Pa.C.S.A. § 3126(a)(7).
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            guilty plea to one count of [IDSI] and one count of
            Indecent Assault. Appellant was sentenced to serve
            not less than 4½ years nor more than 10 years in a
            State Correctional Facility followed by 5 years of
            probation. Additionally, this Court ordered that the
            State Sexual Offenders Assessment Board perform
            an assessment of the Appellant to determine
            whether he should be classified as a sexually violent
            predator [(“SVP”)]. A hearing was held on May 23,
            2016, and, at that time, this Court found by clear
            and convincing evidence that the Appellant met the
            criteria to be classified as a[n] [SVP]. On June 1,
            2016, Appellant filed a Motion for Reconsideration of
            this Court’s determination and order of May 23,
            2016.      On June 6, 2016, this Court denied
            Appellant’s Motion for Reconsideration.

                  On June 1[0], 2016, the Appellant applied for
            leave to appeal in forma pauperis and filed a
            Notice of Appeal to the Superior Court of
            Pennsylvania from this Court’s order of May 23,
            2016.[3] On June 16, 2016, this Court ordered the
            Appellant to file a Concise Statement of Matters
            Complained of on Appeal, pursuant to Pennsylvania
            Rule of Appellate Procedure 1925(b). On June 23,
            2016, the Appellant filed a Concise Statement of
            Errors Complained of on Appeal alleging that this
            Court erred in determining that the Appellant is a[n]
            [SVP].

Trial court opinion, 8/3/16 at 1-2 (footnotes omitted).

      Appellant has raised the following issue for this court’s review:



3
  We note that although appellant pled guilty and was sentenced on October 13,
2015, he waived his right to have an SVP assessment done prior to sentencing,
and no order determining his SVP classification was entered at that time. An
SVP hearing was held on May 23, 2016, and on May 27, 2016, the trial court
entered its order classifying appellant as an SVP. Therefore, appellant’s notice
of appeal filed June 10, 2016, is timely. See Commonwealth v. Schrader,
141 A.3d 558, 561 (Pa.Super. 2016) (“We conclude that where a defendant
pleads guilty and waives a pre-sentence SVP determination, the judgment of
sentence is not final until that determination is rendered.”).


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                   Whether the trial court erred in concluding that
            Appellant should be classified as a[n] [SVP] where
            the Commonwealth presented no evidence that
            Appellant’s pedophilic disorder caused a lack of
            volitional or emotional control associated with a
            mental abnormality defined by 42 Pa.C.S.A.
            § 9799.12; and where Appellant’s age and ability to
            lead a law-abiding life over the past decade make
            Appellant unlikely to engage in future predatory
            sexually violent offenses[?]

Appellant’s brief at 8.

            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.

            ....


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           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), appeal

denied, 38 A.3d 824 (Pa. 2012), quoting Commonwealth v. Fuentes, 991

A.2d 935, 941-942 (Pa.Super. 2010) (en banc), appeal denied, 12 A.3d

370 (Pa. 2010) (citations omitted).

           This Court has explained the SVP determination
           process as follows:

                 After a person has been convicted of an
                 offense     listed  in    [42    Pa.C.S.A.
                 § 9799.14], the trial [court] then orders
                 an assessment to be done by the [SOAB]
                 to help determine if that person should
                 be classified as a[n SVP. An SVP] is
                 defined as a person who has been
                 convicted of a sexually violent offense
                 . . . and who [has] a mental abnormality
                 or personality disorder that makes the
                 person likely to engage in predatory
                 sexually violent offenses. In order to
                 show that the offender suffers from a
                 mental     abnormality    or   personality
                 disorder, the evidence must show that
                 the defendant suffers from a congenital
                 or acquired condition 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. Moreover, there
                 must be a showing that the defendant’s
                 conduct        was     predatory     ....
                 Furthermore,       in      reaching      a


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                 determination, we must examine the
                 driving force behind the commission of
                 these acts, as well as looking at the
                 offender’s propensity to reoffend, an
                 opinion       about      which       the
                 Commonwealth’s expert is required to
                 opine. However, the risk of re-offending
                 is but one factor to be considered when
                 making an assessment; it is not an
                 independent element.

           Commonwealth v. Stephens, 74 A.3d 1034, 1038-
           1039 (Pa.Super. 2013) (internal quotation marks,
           ellipsis, and citations omitted).

           When performing an SVP assessment, a mental
           health professional must consider the following
           15 factors: whether the instant offense involved
           multiple victims; whether the defendant exceeded
           the means necessary to achieve the offense; the
           nature of the sexual contact with the victim(s); the
           defendant’s relationship with the victim(s); the
           victim(s)’ age(s); whether the instant offense
           included a display of unusual cruelty by the
           defendant during the commission of the offense; the
           victim(s)’ mental capacity(ies); the defendant’s prior
           criminal record; whether the defendant completed
           any prior sentence(s); whether the defendant
           participated in available programs for sexual
           offenders; the defendant’s age; the defendant’s use
           of illegal drugs; whether the defendant suffers from
           a mental illness, mental disability, or mental
           abnormality;      behavioral    characteristics   that
           contribute to the defendant’s conduct; and any other
           factor reasonably related to the defendant’s risk of
           reoffending. See 42 Pa.C.S.A. § 9799.24(b).

Commonwealth v. Hollingshead, 111 A.3d 186, 189-190 (Pa.Super.

2015), appeal denied, 125 A.3d 1199 (Pa. 2015) (parentheses in original).

     The Commonwealth’s expert, Veronique N. Valliere, Psy.D., a member

of the SOAB, performed her assessment on December 8, 2015.          In her


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report, Dr. Valliere concluded that appellant met the diagnostic criteria for

pedophilic disorder, which is considered a congenital or acquired condition.

(Commonwealth’s Exhibit C-1 at 5.)4         Pedophilic disorder is considered a

lifetime condition that can only be managed, not cured. (Id.) Dr. Valliere

opined that pedophilic disorder is related to a future likelihood of re-offense.

(Id.) In addition, Dr. Valliere found that appellant’s condition overrode his

emotional or volitional control:       “In spite of knowing the potential

consequences to himself and/or the victim, [appellant] repeatedly engaged

in sexual behavior with a prepubescent child.” (Id.) Dr. Valliere noted that

appellant’s offenses occurred with two different victims, multiple times for

over a decade.      (Id.)    Appellant’s deviant conduct included fondling,

progressing to oral and anal sex.5 (Id. at 2.)

      Regarding the statutory factors outlined above, Dr. Valliere found that

appellant’s offenses involved two victims, and while he did not abuse them

at the same time, his offenses were repeated and occurred over a period of

years. (Id. at 3.) The victims were prepubescent when the abuse began;

one victim was 7 and the other was 10 years old.          (Id. at 4.)   The first

victim, V.P., was appellant’s stepson; the second victim, D.S., was his




4
   Neither the Commonwealth’s nor appellant’s expert testified at the SVP
hearing. The Commonwealth and the defense relied on the experts’ reports and
stipulated to their testimony. (Notes of testimony, 5/23/16 at 5-6.)
5
  Appellant did not admit to anal sex as part of his guilty plea; however, it was
charged in the criminal complaint and information.


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biological son.   (Id.)   Appellant used his authority as a father figure to

ensure the victims’ compliance. (Id.) Appellant was 49 years old, indicating

that his personality and sexual arousal pattern were well established. (Id.)

Dr. Valliere found that his age was not protective regarding his risk of

recidivism. (Id.) Appellant had no prior criminal record, and there was no

evidence that drugs or alcohol played a role in appellant’s offense behavior.

(Id.)

        Dr. Valliere concluded that appellant engaged in “predatory” behavior

as that term is defined in the statute, i.e., appellant had access to both

victims through a familial relationship and used that relationship to facilitate

their victimization. (Id. at 5-6.) In Dr. Valliere’s expert opinion, appellant

met the statutory criteria to be classified as an SVP. (Id. at 6.)

        Appellant’s expert, Timothy P. Foley, Ph.D., agreed with Dr. Valliere

that appellant met the DSM-56 criteria for pedophilic disorder.        (Defense

Exhibit D-1 at 4.) Dr. Foley also agreed that appellant’s offenses involved

two prepubescent children, aged approximately 7 to 13 years during the

commission of the offenses.       (Id. at 5.)    Dr. Foley acknowledged that

appellant promoted a parental relationship with the victims, satisfying the



6
  Diagnostic and Statistical Manual of Mental Disorders, 5th Edition. “The DSM is
a categorical classification system that divides mental disorders into types
based on criteria sets with defining features. According to [both experts], the
DSM is an authoritative compilation of information about mental disorders and
represents the best consensus of the psychiatric profession on how to diagnose
mental disorders.” Hollingshead, 111 A.3d at 190 n.4 (citation omitted;
internal quotation marks omitted; brackets in original).


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predatory prong of the statute.     (Id. at 7.)   There were indications that

appellant promoted a relationship with the victims for the primary purpose of

sexual victimization.    (Id. at 5.)    However, Dr. Foley disagreed that

appellant suffers from a mental abnormality making him likely to perpetrate

sexually violent acts in the future or that appellant has current volitional

deficits compromising his ability to control his sexual behavior. (Id. at 6.)

      In reaching his conclusions, Dr. Foley relied on the “Static-99R,” an

actuarially-derived prediction tool intended to measure long-term risk

potential for sexual offending.    (Id. at 4.)    According to Dr. Foley, the

Static-99R is based on a meta-analysis of the records of more than 25,000

convicted sex offenders released to the community.          (Id.)    Factors in

appellant’s favor vis-à-vis his risk of re-offense included that the victims

were not strangers or unrelated to appellant; there were no indications he

did more than what was necessary to commit the offenses; there were no

reports of gratuitous cruelty or violence; other than their ages, neither

victim suffered from a cognitive deficit that increased his vulnerability to

abuse; appellant’s age of 49 years and the likelihood that he will be confined

or supervised for many years; appellant’s lack of a prior criminal record; and

the fact that appellant had no documented victims for more than 10 years,

after he last abused the second victim in this case. (Id. at 5-6.) Dr. Foley

concluded that using the Static-99R risk assessment tool, appellant is

categorized with offenders who recidivate with low frequency.       (Id. at 7.)



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Dr. Foley determined that appellant did not meet the statutory criteria for

categorization as an SVP. (Id.)

      After considering both experts’ reports, as well as the arguments of

counsel and appellant’s own testimony, the trial court found clear and

convincing evidence that appellant satisfied the statutory criteria for SVP

status:

            The Court considered the reports of both experts,
            with all due respect to Dr. Foley, who did not have
            the benefit of an interview.[7]        The Court is
            extremely concerned by several statements that
            [appellant] made specifically when asked questions
            about the sexual abuse of V.P. he stated he felt bad
            and wanted to stop but he was unable to and it
            continued. He had no regrets. The second comment
            that the Court is extremely troubled by is the
            comment in response to questioning, about the oral
            sex that occurred was [appellant]’s statement it
            wasn’t anything serious it was stupid.[8]        With
            respect to his responses to the Assistant District
            Attorney’s questioning with respect to D.S. the Court
            finds it troubling that this many years later
            [appellant] continues to justify his horrific acts
            towards D.S. by saying that D.S.’s mother indicated


7
  Appellant declined to participate in the interview process; therefore, neither
expert interviewed appellant.
8
            Q[.]   Would I also be correct that your sexual abuse of
                   V.P. was escalating; in other words, in the
                   beginning of your sexual abuse of V.P. it started
                   with fondling of V.P. and eventually escalated at
                   least to what you admitted at the guilty plea to
                   you penetrating his mouth with your penis?

            A[.]   I suppose but that happened like once and it
                   wasn’t like anything serious. It was stupid.

Notes of testimony, 5/23/16 at 14.


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            that D.S. wasn’t developing right and therefore that
            was the reason for the sexual abuse.

Notes of testimony, 5/23/16 at 24.

      Appellant does not dispute the diagnosis of pedophilic disorder, but

argues that the Commonwealth failed to prove it affects his emotional or

volitional capacity as required by 42 Pa.C.S.A. § 9799.12. (Appellant’s brief

at 19.)    Appellant also argues that the trial court misconstrued his

testimony. (Id. at 20-21.) Appellant emphasizes that there were no further

reports of child sexual abuse after 2005, despite the fact that he was around

children during this time. (Id. at 21.)

      In concluding that appellant’s mental abnormality, i.e., pedophilic

disorder, compromised his emotional and volitional control, Dr. Valliere

stated, “In spite of knowing the potential consequences to himself and/or

the victim, [appellant] repeatedly engaged in sexual behavior with a

prepubescent child. His deviant arousal pattern motivated his sexual offense

to a second victim for a period of offending that spanned over a decade.”

(Commonwealth’s Exhibit C-1 at 5.) The trial court, as fact-finder, was free

to accept Dr. Valliere’s opinion in this regard. In fact, the allegations were

that appellant did not stop molesting his first victim, V.P., until V.P.

threatened to stab him. (Id. at 2.) V.P. was approximately 13 years old at

that time. (Id.) Appellant then turned to his biological son, D.S., who was

10 years old. (Id.)




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      At the SVP hearing, appellant denied that V.P. ever threatened to stab

him, but did admit having difficulties controlling his sexual urges:

            Q[.] No, sir. Were there ever times during the
                 period of time when you sexually abused V.P.
                 that you felt bad about it and wanted to stop?

            A[.]   Oh, yes, yes, yeah. I can concretely answer
                   that question, yes, there was [sic].

            Q[.] Despite occasions when you would feel bad
                 about it and wanted to stop were there
                 occasions where you would nevertheless
                 continue to sexually abuse V.P.?

            A[.]   Yeah. But it was one thing on my mind and
                   not any -- I wasn’t feeling any regret at the
                   moment.     I was either usually under the
                   influence of marijuana or possibly alcohol or
                   both and kind of I don’t know kind of out of it
                   for that.

            Q[.] Would it be fair to say that despite your best
                 intentions to not want to sexually abuse V.P.
                 you continued to abuse V.P.?

            A[.]   I guess the feeling of regret did pass away
                   after a period of time. I don’t know what
                   increment [sic] I was feeling at the time.

Notes of testimony, 5/23/16 at 13-14.

      Therefore, the testimony supports the trial court’s finding that

appellant was unable to control his deviant sexual impulses.           At least

sometimes, he knew what he was doing was wrong and wanted to stop, but

could not resist his pedophilic urges. Regarding appellant’s argument that

there were no reported incidents after 2005, appellant testified that he was

around other children over the last 10 years, including friends of D.S. and


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the 8- or 9-year-old son of one of his girlfriends. (Id. at 18-19.) However,

appellant testified that he was never alone with any of these other children.

(Id. at 18-20.)    Therefore, he never would have had the opportunity to

abuse them.

      Appellant also argues that the Commonwealth failed to prove he is

likely to commit future predatory sexually violent offenses. Appellant relies

on Dr. Foley’s report, including his use of the Static-99R assessment tool.

Appellant cites several factors related to the risk of re-offense, including his

age, the fact that he did not exceed the means necessary to commit the

offenses or display unusual cruelty during the crimes, and that commission

of the crimes did not involve alcohol or drug use.9       (Appellant’s brief at

28-29.) Appellant claims that the trial court took his statement that forcing

V.P. to perform oral sex “wasn’t like anything serious” out of context, and

that he fully appreciated the seriousness of the offenses.        (Id. at 27.)

Appellant also argues that Dr. Valliere never explicitly stated that appellant

is likely to re-offend. (Id. at 25.)

      Dr. Valliere considered the factors relied upon by appellant, including

his age, but concluded that, “His age is not protective regarding recidivism

risk.” (Commonwealth’s Exhibit C-1 at 4.) Dr. Valliere acknowledged that

“There is nothing in the offense information to indicate that the offender is


9
  In fact, as stated above, appellant testified that he was frequently high or
drinking alcohol when he sexually abused V.P. (Notes of testimony, 5/23/16 at
13.)


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aroused to cruelty or the pain, humiliation, or terror of the victim.”    (Id.)

Dr. Valliere found that appellant has a disorder, pedophilia, “related to a

future likelihood of re-offense.”   (Id. at 5.)   Dr. Valliere also noted that

pedophilic disorder cannot be cured and that “[appellant] always has the

potential to become sexually aroused to children.” (Id.) Furthermore, “the

risk of re-offending is but one factor to be considered when making an

assessment; it is not an independent element.” Stephens, 74 A.3d at 1039

(citation omitted).   See also Morgan, 16 A.3d at 1171 (“Dr. Valliere was

not required to explicitly say that Appellant would reoffend in order to qualify

him as an SVP.        His mental abnormality and the exhibited predatory

behavior predispose him to [the] future likelihood of victimization.” (quoting

with approval from the trial court opinion, 10/21/10 at 8-10)).

      The trial court did not take appellant’s statements out of context, as

appellant suggests. To the contrary, when questioned on cross-examination

regarding forcing his penis into V.P.’s mouth, appellant responded, “I

suppose but that happened like once and it wasn’t like anything serious. It

was stupid.”    (Notes of testimony, 5/23/16 at 14.)          In addition, the

testimony does not reflect that appellant appreciated the seriousness of the

offenses and their impact on the victims. Appellant bemoaned the fact that

“I’ve lost everything, everything, everything, friends, family, money,

possessions.”   (Id. at 11.)   Appellant complained that an SVP designation

“would just complicate things immensely.” (Id.) Appellant testified that any



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feeling of regret “did pass away after a period of time.”        (Id. at 14.)

Appellant also claimed that after he and V.P.’s mother broke up, V.P. came

to live with him willingly. (Id.) With respect to his abuse of D.S., appellant

seemed to blame D.S.’s mother. (Id. at 14-16.) So, the record does not

support appellant’s argument that he understood the serious nature of the

offenses and their devastating impact on the victims.

      Appellant relies on Dr. Foley’s report and his use of the Static-99R

actuarial-assessment    tool.    However,    as   this   court   remarked    in

Hollingshead, in which the defendant had also retained Dr. Foley as her

expert:

            Appellant argues that Dr. Foley’s testimony proves
            that she is not an SVP. We, as an appellate court,
            are required to view the evidence in the light most
            favorable to the Commonwealth when reviewing the
            sufficiency of the evidence for an SVP determination.
            The trial court made a credibility determination and
            chose to believe Ms. Scheuneman over Dr. Foley.
            We may not disturb that credibility determination.

Hollingshead, 111 A.3d at 194. See also Morgan, 16 A.3d at 1173 (“this

Court recently rejected this assertion that the likelihood to reoffend must be

based upon ‘any actuarial instrument to predict risk.’”), quoting Fuentes,

991 A.2d at 944.

      The trial court carefully weighed all of the statutorily-mandated factors

and concluded that the evidence proved, by clear and convincing evidence,

that appellant is an SVP. We discern no error of law or abuse of discretion in




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this determination.   Accordingly, we affirm the order of the trial court

classifying appellant an SVP.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/14/2017




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