J-S76040-14

                              2015 PA Super 38

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

KYLA A. HOLLINGSHEAD,

                         Appellant                No. 1294 WDA 2014


       Appeal from the Judgment of Sentence of December 9, 2013
              In the Court of Common Pleas of Blair County
          Criminal Division at No(s): CP-07-CR-0001252-2013

BEFORE: FORD ELLIOTT, P.J.E., PANELLA and OLSON, JJ.

OPINION BY OLSON, J.:                         FILED FEBRUARY 19, 2015

     Appellant, Kyla A. Hollingshead, appeals from the judgment of

sentenced entered on December 9, 2013, as made final by the order entered

on July 30, 2014 which designated her a sexually violent predator (“SVP”).

We affirm.

     The factual background of this case is as follows.   In August 2010,

Appellant was hired by Altoona Area High School to serve as an assistant

coach of the girls’ soccer team.     In October 2010, Appellant began a

romantic relationship with a 15-year-old player on the team.   In October

2012, Appellant began a romantic relationship with a 16-year-old player on

the team.     Eventually, both relationships led to sexual contact between

Appellant and the players.
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        The procedural history of this case is as follows. On June 21, 2013,

Appellant was charged via criminal information with two counts of corruption

of minors1 and one count of institutional sexual assault.2 On December 9,

2013, Appellant pled guilty to one count of corruption of minors and

institutional sexual assault. She was immediately sentenced to 60 days to

23½ months’ imprisonment followed by 30 months’ probation.           The trial

court also ordered that the Sexual Offender Assessment Board (“SOAB”)

evaluate Appellant to determine if she met the criteria to be classified as an

SVP.

        On March 17, 2014, the Commonwealth filed a praecipe for an SVP

hearing, which occurred on June 3, 2014. Corrine Scheuneman, MA, LPC, a

member of the SOAB, testified on behalf of the Commonwealth and Dr.

Timothy Foley testified on behalf of Appellant.        After considering post-

hearing briefs, the trial court designated Appellant an SVP, and issued an

opinion explaining its rationale. This timely appeal followed.3

        Appellant presents one issue for our review:


1
    18 Pa.C.S.A. § 6301(a)(1).
2
    18 Pa.C.S.A. § 3124.2(a)(2.1).
3
   On August 18, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b).       On August 19, 2014, Appellant filed her concise
statement. On August 21, 2014, the trial court issued a statement adopting
its opinion of July 30, 2014. Appellant’s lone issue on appeal was included in
her concise statement.



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     [Did] the trial court err[] and/or abuse[] its discretion by
     classifying Appellant as a[n SVP?]

Appellant’s Brief at 17 (complete capitalization removed).

     Appellant challenges the sufficiency of the evidence relating to the trial

court’s SVP designation. Our standard and scope of review is well-settled:

     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[n SVP]. As with any
     sufficiency of the evidence claim, we view all 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.

Commonwealth v. Baker, 24 A.3d 1006, 1033 (Pa. Super. 2011), aff’d, 78

A.3d 1044 (Pa. 2013) (citation 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 determination,
     we must examine the driving force behind the commission of
     these acts, as well as looking at the offender’s propensity to re-
     offend, an opinion about which the Commonwealth’s expert is


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      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).

      Appellant concedes that her conduct was predatory.             She argues,

however, that the Commonwealth failed to prove that she suffers from a

mental abnormality or personality disorder, as is required for an SVP

determination.    Appellant argues that the abnormality cited by Ms.



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Scheuneman, hebephilia, is not a recognized mental disorder.        Appellant

argues that Ms. Scheuneman failed to cite the criteria used to make a

hebephilia diagnosis and explain how the particular facts of this case met

those criteria and resulted in a hebephilia diagnosis. Appellant also contends

that Dr. Foley’s testimony demonstrated that she does not suffer from a

mental abnormality.

      Hebephilia is not a listed disorder in the fourth (text revision) and/or

fifth edition of the Diagnostic and Statistical Manual of Mental Disorders

(collectively “DSM”).4 See Illinois v. New (In re Detention of New), 21

N.E.3d 406, 409-410 (Ill. 2014) (citation omitted).        Ms. Scheuneman

testified that hebephilia is a paraphilia not otherwise specified in the DSM.

Appellant concedes 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.”   Commonwealth v. Lee, 935 A.2d 865, 884 (Pa.

2007) (citation omitted); see Appellant’s Brief at 23.      Nonetheless, she

argues that Ms. Scheuneman did not base her diagnosis on “reliable

diagnostic or written criterion.” Id. In support of this argument, Appellant

cites to Ms. Scheuneman’s testimony that individuals with hebephilia are

4
   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.” Tex. State Bd. of
Exam’rs of Marriage & Family Therapists v. Tex. Med. Ass’n, 2014 WL
6651201, *3 n.1 (Tex. App. Nov. 21, 2014) (citation omitted).



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attracted to victims in different age ranges. Ms. Scheuneman testified that

generally individuals with hebephilia are sexually attracted to 13-15 year

olds but some individuals with the disorder are attracted to 13-16 year olds

and others are attracted to 11-14 year olds.

      Appellant’s argument misconstrues Ms. Scheuneman’s testimony. Ms.

Scheuneman testified that the diagnostic criteria for hebephilia are attraction

to young people because of the intersection of the young person’s innocence

and vulnerability, and the emergence of secondary sexual characteristics.

N.T., 6/3/14, at 16-17. The age brackets mentioned by Ms. Scheuneman,

and relied upon by Appellant on appeal, were merely general guides as to

when the innocence and vulnerability of a young person might intersect with

the emergence of secondary sexual characteristics.          Thus, these age

brackets were not the diagnostic criteria relied upon by Ms. Scheuneman.

Accordingly, Appellant’s attack on the varying age ranges is without merit.

      Ms. Scheuneman explained how the application of those criteria to the

specific factual circumstances of this case led her to conclude that Appellant

has hebephilia.   Specifically, she testified that Appellant relied upon the

victims’ innocence and vulnerability by threatening to commit suicide if their

relationships ended.    Furthermore, she testified that Appellant told the

victims that the relationships needed to be kept secret. Appellant groomed

the students, again relying on their innocence and vulnerability, by giving

them gifts, watching movies together, and similar activities.



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      Ms. Scheuneman also testified regarding Appellant’s interest in the

secondary sexual characteristics of the victims, and other young people.

Specifically, she testified regarding prior incidents involving young people of

similar sexual maturity.    See N.T., 6/3/14, at 23-26.     Furthermore, the

sexual activity between Appellant and the victims evidenced her interest in

the secondary sexual characteristics of the victims. Thus, when viewed in

the light most favorable to the Commonwealth, Ms. Scheuneman’s testimony

provided sufficient evidence for the trial court to conclude that Appellant

suffered from hebephilia.

      Appellant next contends that even if she has hebephilia, a hebephilia

diagnosis is insufficient to satisfy the mental abnormality or personality

disorder requirement.    In support of this argument, Appellant cites Allen

Frances and Michael B. First, Hebephilia Is Not a Mental Disorder in DSM-IV-

TR and Should Not Become One in DSM-5, 39:1 J. Am. Acad. Psych. L. 78-

85 (2011). Our Supreme Court has never considered a case in which the

trial court relied upon a hebephilia diagnosis in order to find a mental

abnormality. This Court, however, has considered a hebephilia diagnosis on

one occasion. See Commonwealth v. Plucinski, 868 A.2d 20 (Pa. Super.

2005).

      In Plucinski, this Court did not decide whether hebephilia was a

sufficient diagnosis for purposes of an SVP determination.       Instead, this

Court found that there was insufficient evidence to support the trial court’s



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SVP determination because the Commonwealth’s expert’s own testimony

“call[ed] into question the identification of hebephilia as the primary impetus

for [Plucinski’s] behavior.”   Id. at 27 (internal quotation marks omitted).

Instead, the lack of sexual intercourse between Plucinski and his wife led to

Plucinski seeing his step-daughter as a sexual outlet.    Id. This testimony

severed the necessary link between a mental disorder and the likelihood of

Plucinski’s involvement in predatory sexual behavior.

      Furthermore, Plucinski is distinguishable from the case at bar

because several statutory factors were not present in that case.           For

example, Plucinski did not use unnecessary means in his crime and he had a

single victim. Id. As discussed more fully below, the trial court in this case

found that both of these factors weigh in favor of an SVP determination.

Accordingly, our rejection of the hebephilia diagnosis in Plucinski was a

fact-intensive determination and has little bearing on Appellant’s broad

attack on the use of hebephilia diagnoses in SVP proceedings.5

      Instead, we find instructive decisions from our sister states. In New

York v. Shannon S., 980 N.E.2d 510, 514–515 (N.Y. 2012), the Court of

Appeals of New York (New York’s court of last resort) held that a hebephilia

diagnosis was sufficient to sustain the trial court’s finding of a mental

5
  Furthermore, this Court has since noted that our “Supreme Court in
[Commonwealth v. Meals, 912 A.2d 213 (Pa. 2006)] disapproved this
Court's re-weighing of the [statutory] factors [as this Court did in
Plucinski].” Commonwealth v. Morgan, 16 A.3d 1165, 1173 (Pa. Super.
2011), appeal denied, 38 A.3d 824 (Pa. 2012).



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abnormality. In Shannon S., the defendant made the same argument as is

advanced by Appellant in the case at bar – “hebephilia is neither abnormal

nor deviant as most [individuals] are sexually attracted to fully formed

pubescent [individuals of the opposite sex].” Id. at 513 (internal quotation

marks omitted). The Court of Appeals rejected that argument and held that

an individual with hebephilia has a mental abnormality. It concluded that,

under the facts of Shannon S., the state had proven by clear and

convincing evidence that Shannon S. had “a strong predisposition to commit

sex offenses, and such an inability to control behavior, that the person is

likely to be a danger to others and to commit sex offenses[.]” Id. at 515

(citations omitted).

      Likewise, in Wamstad v. Corman (In re Corman), 845 N.W.2d 335,

340 (N.D. 2014), the defendant argued that “hebephilia is not a mental

disorder and will not be included in the DSM–5.” Thus, Corman contended

that the hebephilia diagnosis was insufficient to find that he “ha[d] a

congenital or acquired condition that [wa]s manifested by a sexual disorder,

a personality disorder, or other mental disorder or dysfunction.”       Id.

(citations omitted). The Supreme Court of North Dakota rejected Corman’s

argument and held the evidence was sufficient to find that he suffered from

a mental disorder. Id. It relied upon the state’s expert witness’ testimony

and the fact that Corman’s interest in young people had manifested itself on

multiple occasions over several years. Id. at 341. The same is true in the



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case at bar.    As noted above, Ms. Scheuneman testified regarding prior

incidents involving Appellant and pubescent young people.

      Similarly, in Massachusetts v. McKinley, 5 N.E.3d 2 (table) (Mass.

App. Ct. 2014) (per curiam), the defendant argued the evidence was

insufficient to prove that he had a mental abnormality.     As in the case at

bar, the Commonwealth’s expert in McKinley testified that the defendant

suffered from a paraphilia not otherwise specified in the DSM. Specifically,

she testified that McKinley suffered from hebephilia. Also, as in the case at

bar, McKinley argued that the debate within the scientific community

regarding hebephilia precluded a finding that he suffered from a mental

abnormality. The appellate court rejected that argument and held that the

scientific debate regarding hebephilia went to the weight of the evidence –

not its sufficiency.   Thus, it concluded that the Commonwealth’s expert’s

diagnosis of hebephilia was sufficient to find that the defendant had a mental

abnormality.

      The federal appellate courts have also held that hebephilia can be a

“serious mental illness, abnormality, or disorder.” 18 U.S.C. § 4247(a)(6).

For example, in United States v. Carta, 592 F.3d 34, 38 (1st Cir. 2010),

the defendant’s expert “asserted that hebephilia was not a generally

accepted diagnosis in the mental health community, did not fit within the

DSM definition of paraphilia[,] lacked diagnostic criteria[,] and could not be

consistently defined.”    The United States Court of Appeals for the First



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Circuit rejected that argument, and held that a diagnosis of paraphilia not

otherwise specified – hebephilia was sufficient to find the defendant had a

mental abnormality or disorder.    Id. at 40.    Relying on Carta, the United

States Court of Appeals for the Fourth Circuit also held “that hebephilia, as

colloquially understood, is a § 4247(a)(6) illness, abnormality, or disorder.”

United States v. Caporale, 701 F.3d 128, 137 n.4 (4th Cir. 2012) (internal

quotation marks omitted).

     We agree with these courts that the debate surrounding hebephilia

diagnoses, and their use in SVP proceedings, goes to the weight of the

expert witness’ testimony.6 In this case, Appellant does not challenge the

weight of the evidence. Rather, she challenges whether the evidence was

sufficient to conclude that she is an SVP.      Therefore, we hold that a trial

court may conclude, based upon the expert testimony and facts in a given

case, that a hebephilia diagnosis is sufficient to find a defendant has a

mental abnormality. In this case, the trial court credited Ms. Scheuneman’s

testimony regarding hebephilia.    Therefore, the trial court’s finding that

Appellant suffered from a mental abnormality is supported by the record.


6
   We recognize that at least one jurisdiction has refused to hold that
hebephilia can be used to support a finding of a mental abnormality. In
New the Supreme Court of Illinois held that a Frye hearing was required
prior to determining if a hebephilia diagnosis was sufficient to involuntarily
commit a sexual predator. New, 21 N.E.3d at 412-417. In this case,
however, Appellant did not seek a Frye hearing before the trial court.
Accordingly, any argument that a Frye hearing should have been conducted
is waived. See Pa.R.A.P. 302(a).



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       Having determined that a hebephilia diagnosis is sufficient for the trial

court to find a mental abnormality, we next turn to the trial court’s

consideration of the 15 statutory factors. As to the first factor, the offense

involved multiple victims. As to the second factor, the trial court found that

Appellant slightly exceeded the means necessary to achieve the offense.

“Specifically, [Appellant] offered the victims favors, special time with her[,]

and gifts of jewelry.”   Trial Court Opinion, 7/30/14, at 5.    As to the third

factor, the nature of the sexual conduct was oral sex.

       As to the fourth factor, Appellant served as the assistant coach on the

girls’ soccer team at Altoona High School and the victims were members of

that team.    The trial court found that Appellant “used that relationship to

exploit their trust[.]” Id. at 6. As to the fifth factor, the victims were 15

and 16 years old at the time of the offenses. As to the sixth factor, the trial

court found that Appellant did not display unusual cruelty during the

commission of the offense. As to the seventh factor, the trial court found

that Appellant used one of the victim’s emotional vulnerability to manipulate

her.   As to the eighth, ninth, and tenth factors, Appellant had no prior

criminal history.

       As to the eleventh factor, Appellant was 22 years old at the time of the

offense. As to the twelfth factor, there is no evidence that Appellant used

illegal drugs.   As to the thirteenth factor, as discussed in greater detail

above, the trial court found that Appellant suffered from a mental



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abnormality, i.e., hebephilia.   As to the fourteenth factor, the trial court

found that Appellant groomed her victims.         As to the final factor, the trial

court found no other circumstances relevant to the SVP inquiry.

       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.        When viewed in the light

most favorable to the Commonwealth, the evidence is sufficient to support

the trial court’s SVP determination.

       To the extent that Appellant argues that the trial court erred as a

matter of law by discrediting Dr. Foley’s testimony, we find that argument

likewise to be without merit. The trial court found Dr. Foley’s report to be

lacking and his focus on the risk of recidivism to be misplaced.         This was

legally correct as “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).

       In sum, 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 ascertain no error of law or abuse of




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discretion in this determination. Accordingly, we affirm the order of the trial

court designating Appellant a sexually violent predator.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/19/2015




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