J-S62020-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JAMAAL GILL,

                            Appellant                 No. 2943 EDA 2013


          Appeal from the Judgment of Sentence of October 11, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0003451-2013


BEFORE: ALLEN, OLSON AND OTT, JJ.

MEMORANDUM BY OLSON, J.:                         FILED NOVEMBER 25, 2014

        Appellant, Jamaal Gill, appeals from the judgment of sentence entered

on October 11, 2013. We affirm.

        On May 14, 2013, Appellant entered a negotiated guilty plea to

indecent assault and corrupting the morals of a minor.1       During the guilty

plea colloquy, Appellant admitted to the following facts:

          if called to testify, the [five-year-old c]omplainant . . . [,
          who is Appellant’s] cousin, would [testify] that on or about
          July [8,] 2012, [she was inside of Appellant’s Philadelphia]
          house. . . . [At that time, Appellant took the complainant]
          into the bathroom [and] pull[ed] down her pants. Further,
          [the complainant] would [testify] that [Appellant] pulled out
          his penis and tried to force the [c]omplainant’s head onto
          his penis several times.


____________________________________________


1
    18 Pa.C.S.A. §§ 3126(a)(2) and 6301(a)(1)(i), respectively.
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N.T. Guilty Plea, 5/14/13, at 5.

       The trial court accepted Appellant’s guilty plea to indecent assault and

corrupting the morals of a minor; and, since Appellant was convicted of a

sexually violent offense,2 the trial court deferred sentencing pending

Appellant’s Sexual Offenders Assessment Board (“SOAB”) evaluation, to

determine whether Appellant met the criteria for being deemed a sexually

violent predator (“SVP”). Licensed psychologist Barry Zakireh, Ph.D., of the

SOAB, conducted Appellant’s evaluation and assessment.

       Appellant’s SVP hearing took place on October 11, 2013 and, during

the hearing, Appellant stipulated to Dr. Zakireh’s “expertise in the area of

forensic psychology,” as well as to “[Dr.] Zakireh’s report.”          N.T. SVP

Hearing, 10/11/13, at 2-3. Dr. Zakireh’s expert report was then admitted

into evidence.

       Within Dr. Zakireh’s expert report, Dr. Zakireh concluded that

Appellant met “the criteria set forth in the law for classification as [an SVP].”

Dr. Zakireh’s Report, dated 8/2/13, at 11.       In relevant part, Dr. Zakireh



____________________________________________


2
   42 Pa.C.S.A. § 9799.12 defines a “sexually violent offense” as “[a]n
offense specified in section 9799.14 (relating to sexual offenses and tier
system) as a Tier I, Tier II[,] or Tier III sexual offense.” 42 Pa.C.S.A.
§ 9799.12. In this case, Appellant was convicted of indecent assault by
forcible compulsion, which is classified as a “Tier II sexual offense” under 42
Pa.C.S.A. § 9799.14(c). Specifically, at the time of Appellant’s SVP hearing,
indecent assault by forcible compulsion was classified as a Tier II sexual
offense under 42 Pa.C.S.A. § 9799.14(c)(1.2).



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declared that this final conclusion was based upon the following facts and

conclusions:

        The victim in this case was a five year old female at the
        time of the offense and related to [Appellant] as an
        extended family member (second cousin). The victim and
        her mother were visiting the residence of the sister of
        [Appellant] and it appears that [Appellant] was staying or
        residing there as well. The victim’s mother went to the
        store leaving the child in the home for about ten minutes.
        Upon her return, the victim reported to her that [Appellant]
        took her into [the] bathroom, pulled his pants down,
        exposed his penis, and attempted to force [her] mouth on
        his penis several times.

        . . . [Appellant] has two prior arrests and convictions for
        sexual offenses. On both occasions . . . , he was convicted
        of [i]ndecent [e]xposure. . . . The presence of multiple
        victims has a significant relationship to a distinct paraphilic
        pattern or pathway to sexual offending, or to a pattern of
        disregard and insensitivity to norms or rules, including
        those governing sexual relations or impulses.

                                     ...

        Related to the nature of sexual contact with the victim: the
        sexually assaultive behaviors in this case occurred on one
        occasion. [Appellant’s] behavior was intentional, deliberate,
        likely anteceded by sexual impulses with a prepubescent
        female (he was 30 years old) despite his previous
        convictions for [] sexual offenses spanning a period of six
        years. Hence, his behavior involved a prepubescent minor
        in the present offense with a significant age difference as
        well as significant risk-taking and obliviousness or disregard
        to the likelihood of apprehension or detection. His behavior
        also appears relatively similar to the prior offenses, which
        involved indecent exposure with strangers or acquaintances,
        but in this case he has extended the sexual behavior
        problems by targeting a prepubescent female. Hence, there
        is a demonstrated pattern of evolving, repetitive, and
        persistent sexual offending in this case over a [12] year



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       period despite multiple prior sanctions and criminal justice
       interventions.

       In terms of relationship to the victim, [Appellant] was
       related to the victim as an extended family member, but the
       prior victims of his sexual offenses were unrelated or
       strangers. Hence, he has had both related and unrelated
       victims. Offenders who engage in sexual assaults against
       strangers and/or unrelated persons may have a variety of
       characteristics or clinical disorders, as do those that assault
       related individuals.       Both circumstances may reflect
       predatory behavior and/or an underlying mental disorder,
       and may reflect antisocial or sexually deviant pathways to
       sexual offending. . . .

       In terms of the age of the victim, she was five years old at
       the time the offense occurred and [Appellant] was [30]
       years old, a significant age difference. However, there is
       insufficient evidence of a pedophilic behavior pattern or
       impulses based on the age difference in this case, as the
       offense occurred on one occasion and there is no other
       indication of minor victims in his sexual offending history. . .
       . [Appellant’s] behavior more likely reflects a primarily
       antisocial orientation with impulse control deficits,
       aggression, coercion, manipulation, and diverse victim
       selection based on their availability or opportunity.

                                     ...

       In terms of mental capacity of the victim, there is no
       indication of specific mental or physical disability on the part
       of the victim. However, she was a prepubescent child, and
       significantly at [] risk of harm and negative impact given
       her age and vulnerability.

       In terms of prior offense history, as indicated previously,
       [Appellant] has a history of two prior arrests and
       convictions for sexual offenses. . . . [Appellant] also has a
       history of multiple arrests resulting in sanctions or
       convictions for nonsexual offenses. . . . A history of sexual
       and, to a lesser extent, of non-sexual offenses represents a
       higher risk for sex offense recidivism, with a prior sex
       offense (charges and/or convictions) as one of the most
       consistent or robust predictors associated with sex offense

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       recidivism. [Appellant’s] risk for sex offense recidivism is
       increased due to [the] presence of two prior convictions for
       sexual offenses; prior convictions for noncontact sexual
       offenses [], a prior conviction for nonsexual violence [], and
       the relatively high number of prior [nonsexual] convictions.

                                    ...

       [Appellant] has not gained sufficient skills or applied
       knowledge to manage or alter his inappropriate or harmful
       sexual behavior or cognitions despite sanctions or possible
       treatment.

       In terms of the characteristics related to the offender,
       [Appellant] is currently [31] years old, which is at the age
       level associated with a higher risk of sex offense recidivism
       relative to individuals ages 50 or older. . . . Research also
       indicates that younger offenders, or offenders who manifest
       an early onset of sexual offending, are at a higher risk of
       sex offense recidivism, and an early starter pattern may
       reflect a sexually deviant pathway toward sexual offending
       behaviors, particularly if there is evidence of repeated
       offending after an early onset. . . . [Appellant’s] first
       documented sexual offense (first prior sexual offense)
       occurred when he was [18] years old, which does indicate a
       relatively early onset of sexually coercive behavior.

                                    ...

       Furthermore, the presence of a personality disorder,
       particularly Antisocial Personality Disorder, or an antisocial
       orientation, is also a pathway associated with the
       emergence, onset, and maintenance of sexually coercive
       behavior, and has been found to correlate significantly with
       sexual recidivism.

                                    ...

       [There is a] (high) likelihood that [Appellant] has the
       potential for, or when afforded the opportunity, to sexually
       victimize individuals of varied age groups and relationships.
       . . . [Appellant’s] behavior more likely reflects a primary
       antisocial orientation with impulse control deficits,
       aggression, coercion, manipulation, and diverse victim

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       selection based on their availability or opportunity. . . .
       Overall, [Appellant] has shown an interest or willingness to
       engage in opportunistically coercive and assaultive sexual
       contact with multiple victims, a potential to cognitively
       distort or justify such behavior, as well as disregard the
       social standards related to sexual behavior.

       . . . There is evidence of diverse sex crimes, another factor
       that may serve as a pathway to repeated sexual coercion or
       associated with sex offense recidivism. He has assaulted
       both a related and unrelated or stranger females. His
       known victims ranged in age from five to over [40]. Status
       as a single individual is associated with a greater re-
       offender risk. Given the information about his relational
       history, his risk along this dimension does appear to be
       increased as there is no indication that he ever resided with
       a lover or partner in an intimate relationship for a
       prolonged, consistent or substantial period.


       REFERRAL QUESTION CRITERIA.

       . . . [T]he [SOAB must] provide an opinion [on] whether
       [Appellant] should be classified as a sexually violent
       predator. Sexually violent predator is defined in statute as
       a person who has been convicted of a sexually violent
       offense . . . and who is determined to be a sexually violent
       predator due to a mental abnormality or personality
       disorder that makes the person likely to engage in
       predatory sexually violent offenses. . . .       Predatory is
       defined as “an 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
       support or facilitate victimization.”

                                    ...

       Based on the present evaluation, [Appellant] meets the
       criteria set forth in the Diagnostic and Statistical Manual for
       Mental Disorders, Fourth Edition, Text Revision (DSM-IV-
       TR), for Personality Disorder, NOS, with Antisocial Features.
       This is a diagnostic category that is consistent with the legal
       conception of a mental abnormality as defined by the
       statutes.

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                                    ...

       [Appellant] has . . . [engaged] in sexual coercion and other
       forms of violence or violations of social norms or rights of
       others on multiple occasions over a prolonged period
       including three total arrests and convictions/sanctions for
       sexual offending and with respect to multiple victims or
       complainants, of varied ages and in different contexts or
       relationships, over a significant period (12 years) despite
       apprehension, sanctions, or other interventions including
       possible treatment. Hence, this pattern includes his sexual
       offending behaviors in the case of the [i]nstant [o]ffense,
       and indicates that [Appellant] has significant difficulty
       controlling his aggressive sexual impulses, unruly behavior,
       and disregard for social standards/norms, including coercive
       sexual urges, impulses, and behavior. In particular, this
       disorder is related to his disregard and lack of concern for
       the suffering, distress, or [] impact of his actions on the
       victims, and in his historical inability to modify his behavior
       based on negative consequences or experiences. These
       aspects indicate that due to this disorder, [Appellant] has
       manifested significant difficulty controlling or exerting
       adequate control over his sexual urges, impulses, and
       behavior leading to significant cognitive, emotional, and
       behavioral (volitional) deficits. Furthermore, the presence
       of Antisocial Personality Disorder . . . is also a pathway
       associated with the emergence, onset, and maintenance of
       sexually coercive behavior, and has been found to correlate
       significantly with sexual recidivism. From this perspective,
       it is the opinion of this examiner that, in the case of this
       offender, this mental condition meets the statutory
       requirement for a Mental Abnormality . . . that predisposes
       the person toward the commission of criminal sexual acts.


       PREDATORY BEHAVIOR CRITERION

       . . . In this evaluator’s opinion, the statutory criteria [for
       predatory behavior] is met. . . . [Appellant’s] behavior was
       intentional, deliberate, likely anteceded by sexual impulses
       with a prepubescent female (he was 30 years old) despite
       his previous convictions for [] sexual offenses spanning a
       period of six years for the two offenses, though a period of

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        [12] years considering the [i]nstant [o]ffense as well.
        Hence, his behavior involved a prepubescent minor in the
        present offense with a significant age difference as well as
        significant risk-taking and obliviousness or disregard to the
        likelihood of apprehension or detection. . . . [I]t is the
        opinion of this examiner that [Appellant’s] behavior during
        the [i]nstant [o]ffense clearly corresponds to the legal
        conception of “predatory,” as defined in the Pennsylvania
        Statutes.


        CONCLUSIONS/OPINION

        . . . [I]t is this Board member’s professional opinion, within
        a reasonable degree of psychological certainty, that
        [Appellant] meets the criteria set forth in the law for
        classification as a Sexually Violent Predator. . . .

Dr. Zakireh’s Report, dated 8/2/13, at 1-11.

      Following the introduction of Dr. Zakireh’s report, the Commonwealth

rested its case. Appellant did not present any evidence on his behalf.

      At the conclusion of the SVP hearing, the trial court concluded that

“the Commonwealth [proved] by clear and convincing evidence that

[Appellant] does meet the criteria for a sexually violent predator.” N.T. SVP

Hearing, 10/11/13, at 18. The case proceeded to sentencing, where the trial

court sentenced Appellant to the negotiated term of two to four years in

prison, followed by three years of probation. N.T. Sentencing, 10/11/13, at

19.

      Appellant filed a timely notice of appeal and Appellant now raises the

following claim to this Court:

        Was not the evidence insufficient to establish that
        [A]ppellant met the statutory definition of a “sexually
        violent predator,” where the Commonwealth’s expert used a

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         standard of proof lower than that called for in the governing
         statute?

Appellant’s Brief at 3.3

       Appellant claims that the evidence was insufficient to support the trial

court’s SVP determination, as there was no evidence that Appellant’s mental

abnormality or personality disorder made him “likely” to engage in predatory

sexually violent offenses. Id. at 10. We review this sufficiency claim under

the following standard:

         We do not weigh the evidence presented to the sentencing
         court and do not make credibility determinations. Instead,
         we view all the evidence and its reasonable inferences in a
         light most favorable to the Commonwealth. We will disturb
         an SVP designation only if the Commonwealth did not
         present clear and convincing evidence to enable the court to
         find each element required by the SVP statutes.


____________________________________________


3
  The trial court ordered Appellant to file and serve a concise statement of
errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). Appellant complied with the order and, as is relevant to
the current appeal, Appellant listed the following claim in his Rule 1925(b)
statement:

         the evidence was insufficient to prove SVP status as it failed
         to establish a critical element, the requirement that future
         predatory behavior be “likely”; to wit: Dr. Zakireh relied
         upon an incorrect standard when he stated that [Appellant]
         was [an] SVP because his disorder/mental condition
         “increased his risk for sexual offending” rather than the
         correct standard that it be [sic] “probable” or “more likely
         than not” that he would re-offend. Dr. Zakireh’s ultimate
         opinion was thus negated by relying upon an incorrect
         definition of the word “likely.”

Appellant’s Rule 1925(b) Statement, 12/2/13, at 1-2.



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         We keep in mind that a [SOAB] report or opinion that the
         individual has an abnormality indicating the likelihood of
         predatory sexually violent offenses is itself evidence. Also,
         while a defendant is surely entitled to challenge such
         evidence by contesting its credibility or reliability before the
         SVP court, such efforts affect the weight, not the sufficiency
         of the Commonwealth’s case. Accordingly, [such claims] do
         not affect our sufficiency analysis.

Commonwealth v. Feucht, 955 A.2d 377, 382 (Pa. Super. 2008) (internal

citations omitted). Further, as this Court has held, “[a]n expert’s opinion,

which is rendered to a reasonable degree of professional certainty, is itself

evidence.”    Commonwealth v. Fuentes, 991 A.2d 935, 944 (Pa. Super.

2010) (en banc).

       At the time of Appellant’s SVP hearing, a “sexually violent predator”

was defined, by statute, as:

         An individual convicted of an offense specified in . . . [42
         Pa.C.S.A. § 9799.14(c)(1.2)4] . . . who . . . is determined to
         be a sexually violent predator under section 9799.24
         (relating to assessments) due to a mental abnormality or
         personality disorder that makes the individual likely to
         engage in predatory sexually violent offenses.

42 Pa.C.S.A. § 9799.12. The term “mental abnormality” is defined as: “[a]

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.”           Id.   A “predatory”
____________________________________________


4
  As noted above, at the time of Appellant’s SVP hearing, indecent assault by
forcible compulsion was classified as a Tier II sexual offense, pursuant to 42
Pa.C.S.A. § 9799.14(c)(1.2).



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sexually violent offense is one that is “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.”

Id. Finally, as this Court has explained:

        in reaching [an SVP] determination, [a court] must examine
        the driving force behind the commission of the[] acts, as
        well as look[] at the offender’s propensity to re-offend, 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 [SVP] assessment; it is
        not an “independent element.”

Commonwealth v. Stephens, 74 A.3d 1034, 1038-1039 (Pa. Super. 2013)

(internal citation omitted).

      According to Appellant, the evidence was insufficient to support the

trial court’s SVP determination. As Appellant argues, Dr. Zakireh’s report did

not declare that Appellant’s mental abnormality rendered it “likely” that

Appellant would re-offend; instead, Appellant claims, Dr. Zakireh’s report

declared “only that [Appellant’s] mental disorder ‘increase[d] the likelihood’

of re-offending.” Appellant’s Brief at 10. Therefore, Appellant claims, since

there is no evidence that Appellant’s mental abnormality made it “likely” that

he would re-offend, the evidence was insufficient to support the trial court’s

SVP determination. Id. Appellant’s claim fails, as it is belied by the facts

and the law.

      First, Appellant’s argument is contrary to the facts of this case. In this

case, Dr. Zakireh’s report specifically declared that Appellant suffers from



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the mental abnormality of “Personality Disorder, NOS, with Antisocial

Features” and that, as a result of this mental abnormality, there is a “(high)

likelihood that [Appellant] has the potential for, or when afforded the

opportunity, to sexually victimize individuals of varied age groups

and relationships.” Dr. Zakireh’s Report, dated 8/2/13, at 1-11 (emphasis

added). Therefore, and contrary to Appellant’s claim on appeal, Dr. Zakireh

specifically concluded that Appellant’s mental abnormality makes it “likely”

that Appellant will re-offend. To be sure, Dr. Zakireh opined that Appellant’s

mental abnormality makes it highly likely that Appellant will re-offend.

      Second, Appellant’s claim on appeal fails because it is contrary to the

law of this Commonwealth.       On appeal, Appellant claims only that the

evidence was insufficient to support the trial court’s SVP determination

because there is no evidence that “it is more likely than not . . . that

[Appellant] will re-offend at some time in the future.” Appellant’s Brief at 12

(internal emphasis omitted). Yet, this Court has specifically held that “the

risk to re[-]offend is not an ‘independent element’ of the SVP determination,

but rather, is but one factor to be considered when making such an

assessment.” Commonwealth v. Morgan, 16 A.3d 1165, 1173 (Pa. Super.

2011); Stephens, 74 A.3d at 1038-1039. Instead, to prove that Appellant

is an SVP, the statute demands that the Commonwealth prove that Appellant

suffers from a “mental abnormality or personality disorder that makes the

individual likely to engage in predatory sexually violent offenses.”        42

Pa.C.S.A. § 9799.12; see also Morgan, 16 A.3d at 1173; Stephens, 74

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A.3d at 1038-1039. Therefore, since Appellant’s claim rests upon a legally

erroneous foundation, the claim fails for a second reason.

      Finally, we note the plethora of evidence that supports the trial court’s

conclusion that Appellant suffers from a “mental abnormality or personality

disorder that makes [him] likely to engage in predatory sexually violent

offenses.” 42 Pa.C.S.A. § 9799.12. Certainly, Dr. Zakireh concluded, within

a reasonable degree of psychological certainty, that Appellant is an SVP. Dr.

Zakireh’s Report, dated 8/2/13, at 11. Dr. Zakireh based this expert opinion

upon the fact that Appellant suffers from the mental abnormality of

Personality   Disorder,   NOS,   with    Antisocial   Features    and   that,   as   a

consequence of this mental abnormality, Appellant:               has a “pattern of

evolving, repetitive, and persistent sexual offending . . . over a [12] year

period despite multiple prior sanctions and criminal justice interventions;”

has “committed sexual offenses against both related and unrelated victims;”

has multiple arrests “resulting in sanctions or convictions for nonsexual

offenses;” “manifested an early onset of sexual offending;” has “poor

empathy or remorse;” has “an interest or willingness to engage in

opportunistically coercive and assaultive sexual contact with multiple

victims;” has “a potential to cognitively distort or justify” the assaultive

sexual contact; has a potential to “disregard the social standards related to

sexual behavior;” has “significant difficulty controlling his aggressive sexual

impulses, unruly behavior, and disregard for social standards/norms,

including coercive sexual urges, impulses, and behavior;” and, committed a

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“predatory” sexually violent offense in the underlying case. Id. at 1-11. Dr.

Zakireh concluded that all of the above traits, actions, and events increase

the likelihood that Appellant will re-offend.      Id.    Further, Dr. Zakireh

concluded that, as a result of Appellant’s mental abnormality, there is a

“(high) likelihood that [Appellant] has the potential for, or when afforded the

opportunity, to sexually victimize individuals of varied age groups and

relationships.” Id. at 8.

      From the above, it is apparent that the evidence was sufficient to

support the trial court’s determination that Appellant is an SVP. Therefore,

Appellant’s claim fails for this third, independent reason.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/25/2014




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