J-S09031-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER DAVID ATKINSON,

                            Appellant               No. 1251 WDA 2014



          Appeal from the Judgment of Sentence entered July 2, 2014,
               in the Court of Common Pleas of Mercer County,
             Criminal Division, at No(s): CP-43-CR-0001030-2013

BEFORE: FORD ELLIOTT, P.J.E., BOWES, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.:                        FILED FEBRUARY 23, 2015

        Christopher David Atkinson (“Appellant”) appeals from the judgment of

sentence imposed after he pled guilty to one count of aggravated indecent

assault.1 We affirm.

        The victim, who suffers from cerebral palsy and is unable to walk, or

speak on her own without electronic assistance, reported that Appellant

sexually assaulted her when she was approximately 13 years of age, while

she was living with him in foster care between 2010 and 2012. Affidavit of

Probable Cause, 5/1/13; N.T., 12/12/13, at 12-51.



____________________________________________


1
    18 Pa.C.S.A. § 3125(a)(8).
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       On December 12, 2013, Appellant pled guilty to aggravated indecent

assault, and the trial court ordered an assessment by the Sexual Offender

Assessment      Board     (“SOAB”)     in      accordance   with   the   Sex   Offender

Registration and Notification Act (“SORNA”), 42 Pa.C.S.A. § 9799.10 et seq.

On July 2, 2014, the trial court conducted a hearing to determine whether

Appellant met the criteria for classification as a sexually violent predator

(“SVP”), at the conclusion of which it determined that the Commonwealth

had proved by clear and convincing evidence that Appellant qualified as a

Tier III SVP, and ordered Appellant to lifetime registration. That same day,

the trial court sentenced Appellant to a term of imprisonment of three (3) to

ten (10) years.2 No post-sentence motions were filed.

       Appellant filed a notice of appeal on July 31, 2014. Both Appellant and

the trial court have complied with Pa.R.A.P. 1925.

       Appellant presents three issues for our review:

       I.     Did the trial court err in finding that the Commonwealth
              proved through clear and convincing evidence that
              [Appellant] was an SVP when the Commonwealth only
              offered incompetent expert testimony and the [trial court]
              was not presented with any credible testimony to
              substantiate that [Appellant] suffered from a mental
              abnormality, specifically paraphilia, that requires acts of
              abuse that occur for a period of at least 6 months or was
              likely to reoffend?

       II.    Did the trial court err by admitting [the testimony of the
              Commonwealth’s expert witness (Brenda) Manno] when
____________________________________________


2
  Appellant is deaf and was assisted by an interpreter at the guilty plea
hearing, the SVP hearing, and the sentencing hearing.


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             such testimony was incompetent because it relied on
             extrajudicial data that was not of a type that would be
             reasonably relied upon by experts in the particular field as
             required by the Pennsylvania Rules of Evidence?

      III.   Did the trial court err by admitting hearsay in the
             testimony of Ms. Manno in violation of [Appellant’s] right
             to confrontation in the Sixth Amendment of the United
             States Constitution and Article I § 9 of the Pennsylvania
             Constitution because the testimony amounted to
             testimonial hearsay that did not fall into the only exception
             to the rule in cases where the declarant is unavailable and
             [Appellant] had the prior opportunity to cross-examine the
             [declarant]?

Appellant’s Brief at 4-5.

      Although Appellant lists three issues in his brief, his issues all pertain

to the trial court’s reliance on the testimony of the Commonwealth’s expert

witness, Brenda A. Manno, a member of the Pennsylvania SOAB. Appellant’s

Brief at 16-29. Because Appellant’s issues are interrelated, we will address

them together.

      Appellant argues that Ms. Manno’s testimony about her belief that

Appellant is an SVP, was based on her review of unsubstantiated, unreliable

hearsay contained in the police report and criminal complaint, and that her

testimony could not support the trial court’s finding that Appellant is an SVP.

Appellant maintains that Ms. Manno never reviewed the guilty plea colloquy

in making her assessment that Appellant is an SVP, and that without having

knowledge of the factual basis of Appellant’s crimes as set forth at the guilty

plea hearing, Ms. Manno could not credibly testify about whether Appellant’s

conduct qualified him for SVP designation.      Accordingly, Appellant argues




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that the trial court’s SVP determination based on Ms. Manno’s testimony was

unsupported by sufficient evidence.3

       “A challenge to a determination of SVP status requires us to view the

evidence ... [I]n the light most favorable to the Commonwealth.                 The

reviewing court may not weigh the evidence or substitute its judgment for

that of the trial court. The clear and convincing standard requires evidence

that is so clear, direct, weighty and convincing as to enable [the trier of fact]

to come to a clear conviction, without hesitancy, of the truth of the precise

facts [at] issue.”     Commonwealth v. Prendes, 97 A.3d 337, 355 (Pa.

Super. 2014) (citations omitted).              “Questions of evidentiary sufficiency

present questions of law; thus, our standard of review is de novo and our

scope of review is plenary.” Commonwealth v. Stephens, 74 A.3d 1034,

1038 (Pa. Super. 2013) (citations omitted).

             A challenge to the sufficiency of the evidence to support an
       SVP designation requires the reviewing court to accept the
       undiminished record of the case in the light most favorable to
       the Commonwealth. The reviewing court must examine all of
       the Commonwealth's evidence without consideration of its
       admissibility. A successful sufficiency challenge can lead to an
       outright grant of relief such as a reversal of the SVP
       designation[.]

Prendes, 97 A.3d at 356.


____________________________________________


3
  Appellant does not challenge the admissibility of Ms. Manno’s expert
testimony. At trial, when offered the opportunity by the trial court to object
to the qualification of Ms. Manno as an expert, Appellant made no objection
nor cross-examined Ms. Manno with regard to her qualifications. See N.T.,
7/2/14, at 4-8.


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        Appellant argues that Ms. Manno’s testimony was insufficient to

support an SVP determination because Ms. Manno’s SVP assessment relied

on the unsubstantiated facts set forth in the police report and criminal

complaint, which differed from the facts admitted by Appellant at the guilty

plea hearing.        Appellant maintains that at the guilty plea hearing, he

admitted to only one instance of sexual contact with the victim, which could

not support a determination that Appellant engaged in “predatory” behavior.

Appellant’s Brief at 16-20.           Appellant asserts that the only evidence

indicating that he engaged in sexual contact with the victim on more than

one occasion and over an extended period of time, was contained in the

police report and criminal complaint – documents that constituted hearsay

and which could not be relied upon to support an SVP determination.

Appellant thus claims that the evidence was insufficient to classify him as an

SVP.4
____________________________________________


4
  At the guilty plea hearing, Appellant’s counsel set forth the factual basis for
the crime charged (aggravated indecent assault) as follows:

        Appellant’s Counsel:       [Did] you have a child who lived in your home
                                   that had cerebral palsy that you and your wife
                                   took care of?

        Appellant:                 Yes.

        Appellants’ Counsel:       And while this female lived in your home, did
                                   you, on at least one occasion, take your finger
                                   and touch her vagina?

        Appellant:                 One time.

(Footnote Continued Next Page)

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      We have explained the procedure pertaining to SVP assessments:

      An SOAB board member conducts the assessment to determine
      if the individual should be classified as an SVP. The SOAB
      merely assesses the defendant; it does not perform an
      adjudicative function. [42 Pa.C.S.A. § 9799.24] dictates the
      factors for the expert to consider when making an SVP analysis.

Prendes, 97 A.3d at 357.

      To support an SVP designation, the Commonwealth must show (1)

that the individual has been convicted of a sexually violent offense as set

forth in section 9799.14, and (2) that the individual has a mental

abnormality or personality disorder that makes him likely to engage in

predatory sexually violent offenses.             When the Commonwealth meets this

burden, the trial court makes the final determination as to whether the

defendant is an SVP. Prendes 97 A.3d at 357-358.

      Here, at the SVP hearing, Ms. Manno opined that Appellant had a

mental abnormality or personality disorder that made him likely to engage in

predatory sexually violent offenses. Ms. Manno testified that she conducted

her assessment of Appellant as follows:

                       _______________________
(Footnote Continued)

      Appellant’s counsel:          And did your finger even just slightly penetrate
                                    her vagina?

      Appellant:                    Yeah, just touched.

N.T., 12/12/13, at 12.

The affidavit of probable cause appended to the criminal complaint,
however, stated that the sexual contact “start[ed] in 2010 up to November
of 2012.” Affidavit of Probable cause, 5/1/13.


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            Prior to the case being assigned to a[n] [SOAB] board
     member, it’s assigned to a board investigator, and in this case
     that investigator was Nicole Barr. That person goes forward and
     collects all the records that are available on the Defendant and
     offers the Defendant [an] interview which, in this case,
     [Appellant] had the right to decline the interview process and he
     did.
            That information is forwarded to me, the assigned board
     member. I then review all that information. If the Defendant is
     participating, I offer them an interview; and if not, then I do my
     report based on file review of the information that was provided.

                                    ***
           I reviewed the information that was provided in the report
     by the investigator, Nicole Barr; I reviewed a records check for
     ChildLine; I reviewed the police report, the criminal complaint,
     and the case disposition, as well as Court Orders from this
     current case.

                                    ***
           In reviewing the offense, it was noted that the victim in
     the case was not related. She, in fact, had resided with her birth
     family up until she was approximately eight years of age. The
     record indicated that she had physical limitations of cerebral
     palsy and they were significant enough her family could not care
     for her. They found a host family here, which was [Appellant
     and his wife, so she came to reside with them.

           She reported abuse from the time she was approximately
     12 until she was 15 years-of-age. The actual dates in the
     Criminal Complaint would have been January 1st of 2010 to
     November 30th, 2012. So we have a time period a little shy of
     three years.


N.T., 7/2/14, at 8-10.

     Appellant’s counsel immediately raised a hearsay objection to Ms.

Manno’s reliance on information contained in the criminal complaint to

determine the length of time over which the abuse occurred. Id. The trial

court overruled the objection, and Ms. Manno proceeded to outline the

various factors that she considered in making her SVP determination
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pursuant to 42 Pa.C.S.A. § 9799.24, including the nature of Appellant’s

relationship as a primary caregiver to the victim, involved in dressing

feeding, bathing, and changing her; the victim’s physical and mental

limitations; the victim’s inability to communicate without the aid of a

computer; the victim’s dependence on Appellant for her basic needs; the

nature of the sexual contact; the age of the victim; the age of Appellant; the

lack of prior history of abuse by Appellant; the fact that there was only one

victim; and the length of the abuse. N.T., 7/2/14, at 5-13.

      Ms. Manno testified that after reviewing these factors, she concluded

that Appellant “meets the diagnostic criteria for paraphilia not otherwise

specified” and explained that “to meet the [diagnosis of] paraphilia, there

has to be a period of at least six months where you have recurrent, intense

sexually arousing fantasies, urges, or behaviors” with regard to “children

that were not prepubescent or non-consenting adults” as specified in the

DSM IV. Id., at 14.

      Appellant takes issue with Ms. Manno’s presumption that Appellant’s

criminal behavior extended over a period greater than six months. Appellant

argues that Ms. Manno’s reliance on the police report and criminal complaint

to determine that the abuse extended over a greater than six month period

– without having interviewed Appellant or reviewed the guilty plea colloquy

to verify her facts – could not support her determination that Appellant

suffered from a “mental abnormality” in the form of paraphilia or that his

behavior was predatory to support an SVP classification.      N.T., 7/2/14, at


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14-16.   Appellant maintains that at the guilty plea hearing, there was no

evidence that his sexual contact with the victim extended over a period in

excess of six months, as required for a diagnosis of paraphilia.       Rather,

Appellant contends that the only evidence that the sexual activity extended

over a period greater than six months was contained in the unsubstantiated

police report and criminal complaint, and that the trial court could not rely

on such hearsay documents to classify Appellant as an SVP.

     In Prendes, supra, we addressed a similar challenge where the

appellant argued that the record did not support his SVP classification

because the trial court’s SVP determination was based on expert testimony

that was founded on unreliable hearsay and unproven allegations. We made

clear in Prendes:

     The statute governing the SVP assessment does not limit the
     expert's consideration of information only to that admitted at
     trial or at the guilty plea proceedings. In fact, the statute
     requires state, county, and local agencies, offices or entities to
     provide copies of records and information as requested by the
     SOAB in connection with an SVP assessment, without limitation
     on the “admissibility” of that information. See 42 Pa.C.S.A. §
     9799.24(c). As a result, it stands to reason that some if not
     many of the facts necessary to perform the SVP assessment
     might not have been proven beyond a reasonable doubt. Thus,
     we hold an SOAB expert opinion falls within the general rules
     regarding expert witnesses. As such, a SOAB expert's opinion
     may be based on facts or data that the expert has been made
     aware of or personally observed so long as experts in the
     particular field reasonably rely on those kinds of facts or data in
     forming an opinion on the subject; the facts or data consulted
     need not be admissible for the expert's opinion to be admitted.
     See Pa.R.E. 702, 703 ... The SOAB expert must state the facts
     or data on which the opinion is based. See Pa.R.E. 705 and
     Comment (explaining otherwise inadmissible facts and data
     supporting expert opinion are considered only to explain the

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      basis for an expert's opinion, not as substantive evidence).
      Then, the rules of evidence place the full burden of exploration
      of facts and assumptions underlying the testimony of an expert
      witness squarely on the shoulders of opposing counsel's cross-
      examination.     ...  Opposing counsel bears the burden of
      exposing and exploring any weaknesses in the underpinnings of
      the expert's opinion.

Prendes, 97 A.3d at 360-361 (some citations omitted).

      Here, Ms. Manno stated that when performing her assessment, she

relied on the police report, the criminal complaint, and the case disposition,

as well as various orders issued by the trial court in this matter.      N.T.,

7/2/14, at 8-10.    As explained in Prendes “an SOAB expert opinion falls

within the general rules regarding expert witnesses [and as] such, a SOAB

expert's opinion may be based on facts or data that the expert has been

made aware of or personally observed so long as experts in the particular

field reasonably rely on those kinds of facts or data in forming an opinion on

the subject; the facts or data consulted need not be admissible for the

expert's opinion to be admitted.”     Prendes, 97 A.3d at 360-361 citing

Pa.R.E. 702; Pa.R.E.703; In re D.Y., 34 A.3d 177, 182–83 (Pa. Super.

2011). Thus, Ms. Manno was free to rely on the police report and criminal

complaint in making her assessment. Appellant has not demonstrated that

these documents were not of the kind “reasonably relied on by experts in

the particular field” of SVP assessment. Prendes, supra. Moreover, as the

trial court explained:

            Members of the SOAB such as Ms. Manno, regularly make
      SVP assessments relying solely on documents such a police
      reports, affidavits of probable cause, prior criminal records,

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      Department of Transportation records, and other documents.
      Ms. Manno testified that she had performed 889 SVP
      assessments by July 2, 2013 and that she typically used these
      types of documents in making an assessment. [N.T. 7/2/14, at
      8, 20]. Because experts such as Ms. Manno always use these
      types of documents to perform their assessments, and because
      Ms. Manno was certified as such an expert, her testimony was
      admissible.

Trial Court Opinion, 9/25/14, at 4-5.

      Also, although Appellant emphasizes that he admitted at the guilty

plea hearing to only one instance of sexual contact, and that one instance of

sexual contact is inadequate for Ms. Manno to classify paraphilia (which

requires greater than six months of sexual contact), Appellant was free to

cross-examine Ms. Manno at the SVP hearing in this regard, and to explore

the facts and assumptions underlying her testimony and impeach her

credibility by questioning Ms. Manno regarding the facts set forth in the

guilty plea; Appellant’s counsel did not do so. See Prendes 97 A.3d at 358

(once expert testimony has been admitted, the rules of evidence place the

burden of exploring the facts and assumptions underlying the testimony of

an expert witness squarely on the shoulders of opposing counsel who bears

the burden, during cross-examination, of exposing and exploring any

weaknesses in the expert's opinion).

      Finally, we note that while Appellant takes issue with Ms. Manno’s

reliance on the police report and criminal complaint, and “non-use of

[Appellant’s] guilty plea colloquy”, (Appellant’s Brief at 21), Appellant had

the opportunity to participate in the SVP assessment process and meet with


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Ms. Manno for an interview, but declined to do so.       “The absence of an

interview does not preclude the ability to evaluate the offender's behavior

through available history for characteristics similar or dissimilar to the

criteria set forth in the law for defining a sexually violent predator.”

Prendes 97 A.3d at 359 quoting Commonwealth v. Woods, 909 A.2d

372, 381 (Pa. Super. 2006), appeal denied, 591 Pa. 714, 919 A.2d 957

(2007).

     Because we conclude that it was permissible for Ms. Manno to rely on

the police report and criminal complaint in her SVP assessment, Appellant’s

assertion that Ms. Manno’s testimony was insufficient to support the trial

court’s SVP determination lacks merit.

     Appellant additionally raises a weight of the evidence challenge to Ms.

Manno’s credibility, asserting that Ms. Manno’s expert testimony was

incredible and unreliable because she did not independently verify the facts

contained in the police report and criminal complaint.   Appellant’s Brief at

23-29.

     A weight of the evidence claim must be raised either orally or by

written motion before sentencing, or by written motion after sentencing in

order to be preserved for appellate review. In re J.B., --- A.3d ---, 2014

WL 7090340 at 20 (Pa. December 15, 2014); Pa.R.Crim.P. 607. There are

few published opinions addressing a weight of the evidence challenge to an

SVP determination. However, in Commonwealth v. Ratushny, we found

no reason to exempt SVP hearings from the general requirement that weight

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claims must be raised before the trial court to be preserved for appeal.

Ratushny, 17 A.3d 1269, 1271-1272 (Pa. Super. 2011) (holding that the

appellant waived his challenge to the weight of the evidence presented at his

SVP hearing because he had not raised the issue in the trial court).

      Our review of the record reveals that, at the conclusion of the SVP

hearing, Appellant’s counsel did raise an argument that Ms. Manno based

her findings on unproven and unreliable allegations contained in the police

report and criminal complaint, thereby attacking the reliability of Ms.

Manno’s determinations, and adequately preserving a weight of the evidence

challenge.   N.T., 7/2/14, at 24-25.     Therefore, we proceed to address the

merits of this claim.

       Our standard of review of a weight of the evidence claim is for an

abuse of discretion. Appellate review is limited to whether the trial judge's

properly exercised its discretion, and relief is warranted only where the facts

and inferences of record disclose a palpable abuse of discretion.          See

Ratushny, 17 A.3d at 1272.      An expert’s opinion, which is rendered to a

reasonable degree of profession certainly, is itself evidence which the trial

court is free to believe or disbelieve in whole or in part. Prendes, 97 A.3d

at 356. Here, the trial court, in a proper exercise of its discretion, credited

the expert testimony of Ms. Manno in concluding that Appellant met the

criteria for classification as an SVP.    We will not disturb the trial court’s

credibility determinations on appeal, and find no merit to Appellant’s weight

of the evidence challenge.

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      Finally, to the extent Appellant argues the admission of Ms. Manno’s

testimony violated his right to confrontation under the United States and

Pennsylvania Constitutions, we find Appellant’s argument to be undeveloped

and therefore waived. See Appellant’s Brief at 30-32. Appellant cites only

two cases, Commonwealth v. Curnutte, 871 A.2d 839 (Pa. Super. 2005)

and Crawford v. Washington, 541 U.S. 36 (2004), without any meaningful

discussion or analysis as to how these cases specifically relate to his claim

that his sixth amendment right to confrontation was violated. “[W]here an

appellate brief fails to provide any discussion of a claim with citation to

relevant authority or fails to develop the issue in any other meaningful

fashion capable of review, that claim is waived.”        Commonwealth v.

Wilgus, 40 A.3d 1201, 1205 (Pa. 2012) (citations omitted); see also

Commonwealth v. Kearney, 92 A.3d 51, 66 (Pa. Super. 2014) (holding

that the appellant’s failure to develop an argument in support of his claim, or

provide pertinent citation to authority rendered his claim waived).

      For the foregoing reasons, we affirm the judgment of sentence.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/23/2015

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