J-S07027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

KENNETH L. YORTY,

                        Appellant                   No. 711 MDA 2014


          Appeal from the Judgment of Sentence of April 8, 2014
           In the Court of Common Pleas of Cumberland County
           Criminal Division at No(s): CP-21-CR-0002319-2012

BEFORE: BENDER, P.J.E., OLSON AND OTT, JJ.

MEMORANDUM BY OLSON, J.:                           FILED MARCH 06, 2015

     Appellant, Kenneth Lee Yorty, appeals from the judgment of sentence

entered on April 8, 2014. We affirm.

     The factual background of this case is as follows. Appellant sexually

abused Victim 1, his step-granddaughter, from the time she was four years

old until she was approximately 12 years old.      He also sexually abused

Victim 2, his great-granddaughter, from the time she was 7 years old until

she was approximately nine years old.    This sexual abuse included forcing

Victim 1 to give Appellant “hand jobs” and forcing Victim 1 to engage in oral

sex. Appellant ejaculated into Victim 1’s mouth during one of the assaults.

Appellant played “games” with the two victims while abusing them.        For

example, he played a game in which he touched Victim 1’s bare vagina and

penetrated her vagina with his fingers. He also told Victim 1 inappropriate
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sexual stories. These abuses took place while Appellant was watching Victim

1 and Victim 2.

        The procedural history of this case is as follows.   On November 1,

2012, Appellant was charged via criminal information with 19 offenses

related to his sexual abuse of Victims 1 and 2.        On September 9, 2013,

Appellant pled nolo contendre to involuntary deviate sexual intercourse –

victim under 13 years old,1 corruption of minors,2 and indecent assault –

victim under 13 years old.3 On December 4, 2013, the Commonwealth filed

a praecipe for a sexually violent predator (“SVP”) hearing. The SVP hearing

was held on April 1, 2014. Robert M. Stein, Ph.D., a member of the Sexual

Offenders Assessment Board (“SOAB”) testified at the SVP hearing on behalf

of the Commonwealth and Appellant testified on his own behalf. On April 2,

2014, the trial court declared Appellant to be an SVP. On April 8, 2014, the

trial court sentenced Appellant to an aggregate term of 6 to 15 years’

imprisonment. This timely appeal followed.4

        Appellant presents one issue for our review:

1
    18 Pa.C.S.A. § 3123(a)(6).
2
    18 Pa.C.S.A. § 6301(a)(1)(ii).
3
    18 Pa.C.S.A. § 3126(a)(7).
4
  On April 29, 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 May 15, 2014, Appellant filed his concise statement.
On June 23, 2014, the trial court issued its Rule 1925(a) opinion.
Appellant’s lone issue on appeal was included in his concise statement.



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      Did the trial court err when finding the Commonwealth presented
      clear and convincing evidence that [Appellant] meets the
      statutory requirements for classification as a[n SVP]?

Appellant’s Brief at 8 (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-


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      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 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   only   contests   one   aspect     of   the   trial   court’s   SVP

determination. Specifically, he contends that his conduct was not predatory,

as is required for an SVP determination.     Predatory conduct is defined as

“[a]n act directed at a stranger or at a person with whom a relationship has


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been initiated, established, maintained or promoted, in whole or in part, in

order to facilitate or support victimization.”       42 Pa.C.S.A. § 9799.12.

Appellant argues that because he did not seek out relationships with Victim

1 or Victim 2 for the purposes of abusing them, his conduct was not

predatory.

      Appellant’s argument is flawed because it focuses on a single element

of the disjunctive list in the definition of predatory.   It is well-settled that

when interpreting a statute, the General Assembly’s use of the disjunctive

“or” ordinarily means that only one of the list’s elements needs to be

satisfied. See Kelly v. Thackray Crane Rental, Inc., 874 A.2d 649, 656

(Pa. Super. 2005), appeal denied, 891 A.2d 733 (Pa. 2005). Thus, in order

for Appellant’s actions to be predatory the Commonwealth was only required

to   prove   that   Appellant   established,   maintained,   or   promoted    his

relationship with either Victim 1 or Victim 2 to facilitate or support

victimization.

      Dr. Stein testified that Appellant

      used various games and sexual stories to groom [Victim 1] for
      continued sexual contact.

      Grooming has to do with any set of behaviors designed to break
      down a child’s natural defenses and make it easier to commit
      sexual assaults. Multiple acts of sexual assault of both of these
      young girls served to establish with the first act, and then
      maintain and promote with continued acts, sexually victimizing
      relationships. There is sufficient evidence for predatory behavior
      as defined by the statute.

N.T., 4/1/14, at 16.


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      Appellant argues that the games he played with Victim 1 were not

sexual in nature, with one exception (the guessing game in which Appellant

touched Victim 1’s bare vagina). He argues that his testimony at the SVP

hearing proved that he did not intend for that game to turn sexual.      This

argument, however, views the evidence in the light most favorable to

Appellant.    As noted, our standard of review when examining an SVP

determination requires us to view the evidence in the light most favorable to

the Commonwealth.     In this case, the trial court did not credit Appellant’s

testimony at the SVP hearing.      We may not overturn such a credibility

determination. The same is true for Appellant’s contention that his sexually

inappropriate stories were requested by Victim 1.     The trial court did not

credit Appellant’s testimony.   We must defer to the trial court’s credibility

determination and conclude that Appellant’s testimony regarding the games

and stories was not credible.

      We next turn to whether the games and stories provided sufficient

evidence to conclude that Appellant’s actions were predatory.       Appellant

relies primarily on Commonwealth v. Plucinski, 868 A.2d 20 (Pa. Super.

2005), in support of his argument that his conduct was not predatory.

Plucinski is distinguishable for two reasons.     First, 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



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1165, 1173 (Pa. Super. 2011), appeal denied, 38 A.3d 824 (Pa. 2012).

Second, in Plucinski, the Commonwealth’s own expert witness “call[ed] into

question the identification of hebephilia as the primary impetus for

[Plucinski’s] behavior.”    Plucinski, 868 A.2d        at 27 (internal quotation

marks   omitted).      Thus,    there   was    no   evidence   favorable    to   the

Commonwealth for this Court to review. On the other hand, in the case at

bar Dr. Stein testified that the impetus for Appellant’s behavior was his

pedophilia.

      We agree with Appellant that this case is distinguishable from Meals.

In Meals, our Supreme Court found that Meals’ “maintaining a relationship

with the mother for the apparent purpose of sexually exploiting her children”

was sufficient evidence to conclude that Meals’ conduct was predatory.

Meals, 912 A.2d at 223.        There is no evidence to suggest that Appellant

maintained his relationship with his wife, or the victims’ parents, for the

purposes of having access to the victims. Again, we note however, that this

is but one of a number of ways in which the Commonwealth could prove that

Appellant’s actions were predatory.

      Appellant     also   attempts     to    distinguish   Commonwealth          v.

Leddington, 908 A.2d 328 (Pa. Super. 2006), appeal denied, 940 A.2d 363

(Pa. 2007).   Appellant focuses on one of the two rationales given by this

Court for determining that Leddington’s conduct was predatory.             Appellant

correctly notes that, like in Meals, this Court in Leddington determined



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that the defendant’s conduct was predatory because he cultivated a

relationship with the victim’s father in order to gain access to the victim. Id.

at 336. There was, however, a second reason that this Court concluded that

Leddington’s actions were predatory. He had promoted his relationship with

the victim “whereby she permitted him to sleep with her on the couch.” Id.

The same thing occurred in the case sub judice with Victim 1. Specifically,

Appellant promoted his relationship with Victim 1 through the use of games

and stories to the point where she felt comfortable enough to French kiss

Appellant and to permit him to ejaculate in her mouth during oral sex.

      Appellant also attempts to distinguish Commonwealth v. Geiter, 929

A.2d 648 (Pa. Super. 2007), appeal denied, 940 A.2d 362 (Pa. 2007).

Geiter, however, is remarkably similar to the case at bar. In Geiter, Dr.

Stein, the same expert involved in this case, testified that the defendant’s

conduct was predatory because of “the use of pornography as a grooming

behavior.” Id. at 652. In the case at bar, Appellant used oral stories and

games as grooming behavior instead of the viewing of pornography. There

is no reason that the visual stimulation of a victim with pornography should

be considered predatory while the aural stimulation of Victim 1 in this case

should not be considered predatory. Instead, we conclude that the use of

inappropriate sexual stimuli to promote a relationship with a victim is

predatory in nature.      That is exactly what occurred with Victim 1.

Accordingly, we conclude that the Commonwealth proved by clear and



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convincing evidence that Appellant’s conduct was predatory because he

promoted his relationship with Victim 1 to facilitate victimization. We thus

turn to the broader 15 factor analysis conducted by Dr. Stein and the trial

court.

         As to the first factor, the offense involved multiple victims. As to the

second factor, the trial court found that Appellant did not exceed the means

necessary to achieve the offense. As to the third factor, the nature of the

sexual conduct was digital penetration, “hand jobs”, and oral sex. As to the

fourth factor, the victims were Appellant’s step-granddaughter and great-

granddaughter. The trial court found that Appellant used those relationships

to exploit their trust. As to the fifth factor, the victims were four and seven

years old at the time the offenses began.       As to the sixth factor, the trial

court found that Appellant displayed unusual cruelty during the commission

of the offense by ejaculating in Victim 1’s mouth. As to the seventh factor,

the trial court found that the victims were of normal mental capacity. As to

the eighth, ninth, and tenth factors, Appellant had no prior criminal history.

         As to the eleventh factor, Appellant was 60 years old at the time of the

offense which, according to the trial court and Dr. Stein, made Appellant

more likely to reoffend. As to the twelfth factor, there is no evidence that

Appellant used illegal drugs. As to the thirteenth factor, the trial court found

that Appellant suffered from a mental abnormality, i.e., pedophilia.       As to

the fourteenth factor, the trial court found that Appellant groomed his



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victims. As to the final factor, the trial court found no other circumstances

relevant to the SVP inquiry.

      In sum, we conclude that the trial court did not err as a matter of law

nor did it abuse its discretion when it determined that the Commonwealth

had proven, by clear and convincing evidence, that Appellant was a SVP.

Accordingly, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/6/2015




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