J-S39012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                             IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                            Appellee

                       v.

JOHN PHILIP PETERSON

                            Appellant                         No. 1566 MDA 2015


                   Appeal from the Order Entered July 6, 2015
                In the Court of Common Pleas of Dauphin County
                Criminal Division at No: CP-22-CR-0002247-2014


BEFORE: STABILE, PLATT *, and STRASSBURGER*, JJ.

MEMORANDUM BY STABILE, J.:                                      FILED JULY 21, 2016

        Appellant John Philip Peterson appeals from the July 6, 2015 order of

the Court of Common Pleas of Dauphin County (“trial court”), designating

him as a sexually violent predator (SVP) under Section 9799.24, 42

Pa.C.S.A. § 9799.24.1 Upon review, we affirm.

        The   facts   and    procedural        history   underlying   this   appeal   are

undisputed.      Briefly, after being charged with various sex offenses for

abusing a mentally disabled person, Appellant pled guilty to two counts of

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*
    Retired Senior Judge assigned to the Superior Court.
1
   Section 9799.24 provides in part that “[a]fter conviction but before
sentencing, a court shall order an individual convicted of a sexually violent
offense to be assessed by the board. The order for an assessment shall be
sent to the administrative officer of the board within ten days of the date of
conviction for the sexually violent offense.” 42 Pa.C.S.A. § 9799.24(a).
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rape by forcible compulsion and two counts of rape of a mentally disabled

person.2 Prior to sentencing, Appellant executed a written colloquy waiving

his right to have an SVP assessment completed under Section 9799.24 prior

to sentencing. The trial court sentenced Appellant to an aggregate term of

108 to 216 months’ incarceration on the same day he entered into the guilty

plea. On July 6, 2015, more than a year after his sentence, the trial court

held an SVP hearing at which the Commonwealth and Appellant offered

expert testimony.

        Dr. Robert Stein, a licensed psychologist in Pennsylvania with

seventeen years on the Sexual Offender Assessment Board, testified on

behalf of the Commonwealth.           N.T. SVP Hearing, 7/6/15, at 6.    Dr. Stein

testified that although Appellant declined to participate in the SVP

assessment, Dr. Stein did review Appellant’s records. Id. at 6-7. Describing

Appellant’s criminal conduct that gave rise to the SVP assessment, Dr. Stein

testified: “[i]t was a forced sexual assault of a severely handicapped woman

that occurred on July 11th of 2013.            [Appellant] returned to the woman’s

apartment six days later and sexually assaulted her a second time.” Id. at

7. Dr. Stein opined that the sexual assaults involved forcible rapes based on

his review of the victim’s medical records. Id. at 8. Dr. Stein further opined

to a reasonable degree of professional certainty that Appellant’s past

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2
    18 Pa.C.S.A. § 3121(a)(1) and (5).



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criminal record coupled with the sexual crimes sub judice were “consistent

with antisocial personality disorder.”   Id. at 9, 13.    He testified that an

antisocial personality disorder is a condition that “involves chronic rule

breaking, chronic irresponsibility.   That starts somewhere in the teenage

years and needs to be evidenced of [sic] some sort of conduct problems

prior to adolescence and adulthood.” Id.

      Reviewing Appellant’s criminal record, Dr. Stein testified:

      There have been thirteen arrests. At least nine convictions with
      the first arrest before the age 15. There have been different
      types of crime[s]: chronic abuse of substance, violations of
      conditional release, and impulsiveness and chronic risk taking.
      Some of those crimes included drug crimes, burglaries, DUI,
      trespass, criminal mischief, various drug possessions, theft, and
      access device fraud. So we have a variety of different types of
      crime, and we have these sex crimes on top of all that.

Id. at 9-10. Dr. Stein acknowledged that prior to this case, Appellant never

had a recorded sexual crime.       Id. at 10.    Based on his diagnosis that

Appellant suffered from antisocial personality disorder, Dr. Stein opined:

      Generally speaking, when a person with antisocial personality
      disorder has committed a sex offense, the presence of that
      disorder is associated with a higher risk of recidivism. In this
      case, the sex offense was not isolated. There was an offense on
      July 11th.     [Appellant] came back six days later, [and]
      committed another offense.

            We also look . . . [for] any evidence [of a history of] sexual
      deviance . . . There is evidence of that. Not anything that I can
      prove. It’s based on a note from 1988 in his treatment in which
      he self-reported molesting his siblings. That I would look at as
      an aggravating factor. I wouldn’t hang my hat on that, in other
      words, I’m not going to use that to make a diagnosis, but it is
      evidence that aggravates the overall picture.

Id. at 10-11.     Dr. Stein also opined that “[t]he rape of an unusually

vulnerable person who would have had minimal abilities to defend herself is


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consistent with predatory behavior” on Appellant’s part. Id. at 14. Dr. Stein

noted that “[a]ntisocial personality disorder is not considered a treatable or

curable condition.” Id. at 15. Based on his assessment, Dr. Stein opined to

a reasonable degree of professional certainty that Appellant should be

classified as an SVP. Id. at 17.

       In response, Appellant offered the testimony of Dr. Timothy Foley, who

opined that he would not designate Appellant as an SVP because Appellant

was not likely “to commit sexually violent acts in the future.” Id. at 45.

       Dr. Stein, however, disagreed with Dr. Foley’s assessment, noting:

       While we agree on predatory behavior, we agree on antisocial
       personality disorder, and we agree that antisocial personality
       disorder raises the risk of sexual re-offense, the parting of the
       ways occurs on the magnitude of the risk of re-offense.
       Dr. Foley used an actuarial risk tool to determine that the risk of
       re-offense was low.

Id. at 14. Although Dr. Stein acknowledged that risk of recidivism generally

begins to decline after the age of 35, he concluded that no decline has

occurred in this matter because Appellant’s “criminality overall, sexual and

otherwise, has continued into his 40s.”          Id. at 15.   Dr. Stein noted that

Appellant was 41 years old when he twice raped the victim sub judice. Id.

       Following the SVP hearing, the trial court issued an order classifying

Appellant as an SVP. Appellant filed a post-sentence motion, which the trial

court denied. Appellant timely appealed to this Court.3
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3
  Even though Appellant appealed more than 30 days after the imposition of
sentence, we have limited jurisdiction over this appeal to determine the
(Footnote Continued Next Page)


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      On appeal, Appellant argues only that the trial court’s designation of

Appellant as an SVP was against the weight of the evidence.                  In support,

Appellant points out that his expert witness opined that “Appellant does not

have a sexual disorder and that antisocial personality disorder is not directly

related to sex offense recidivism.”              Appellant’s Brief at 9.   Appellant also

points out that his expert opined that Appellant “is not likely to commit

sexually violent acts in the future.” Id.

      Our standard in reviewing a weight of the evidence claim is as follows:

      Appellate review of a weight claim is a review of the exercise of
      discretion, not of the underlying question of whether the verdict
      is against the weight of the evidence. Because the trial judge
      has had the opportunity to hear and see the evidence presented,
      an appellate court will give the gravest consideration to the
      findings and reasons advanced by the trial judge when reviewing
      a trial court’s determination that the verdict is against the weight
      of the evidence. One of the least assailable reasons for granting
      or denying a new trial is the lower court’s conviction that the
      verdict was or was not against the weight of the evidence and
      that a new trial should be granted in the interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis and

citations omitted).

      Relief on a weight of the evidence claim is reserved for
      extraordinary circumstances, when the [fact-finder’s] verdict is
                       _______________________
(Footnote Continued)

propriety of the trial court’s SVP order. In Commonwealth v. Whanger,
30 A.3d 1212 (Pa. Super. 2011), we stated that “[a]n SVP determination is a
collateral consequence of a conviction and is not a sentence. Whanger, 30
A.3d at 1215 (citation omitted). Like Appellant sub judice, the appellant in
Whanger “appealed after the filing of the SVP order. As the SVP order is
collateral to the sentence, but a final order relative to the sole issue before
the SVP court, a defendant whose SVP hearing occurs after sentencing can
obviously appeal from that order regardless of whether it makes judgment of
sentence final.” Id. at 1219-20 n.3 (emphasis added).



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      so contrary to the evidence as to shock one’s sense of justice
      and the award of a new trial is imperative so that right may be
      given another opportunity to prevail. On appeal, [an appellate]
      Court cannot substitute its judgment for that of the [fact-finder]
      on issues of credibility, or that of the trial judge respecting
      weight. Our review is limited to determining whether the trial
      court abused its discretion[.]

Commonwealth v. Sanchez, 36 A.3d 24, 27 (Pa. 2011) (citations and

quotation marks omitted). A weight of the evidence claim must be raised

either orally or by written motion before sentencing, or by written motion

after sentencing to be preserved for appellate review.      See Pa.R.Crim.P.

607(A). Few published opinions address a weight of the evidence challenge

to an SVP determination. In Commonwealth v. Ratushny, 17 A.3d 1269

(Pa. Super. 2011), we stated that “[w]e discern no basis on which to

distinguish our standard of review on weight claims, whether challenging the

weight of the evidence to support a guilty verdict or a trial court’s SVP

determination. A defendant must put the issue before the trial court in the

first instance[.]” Ratushny, 17 A.3d at 1272.

      Here, Appellant’s weight of the evidence claim only challenges the trial

court’s credibility determination insofar as the trial court decided to believe

the testimony of the Commonwealth’s expert, Dr. Stein, over Appellant’s

expert, Dr. Foley, to the extent they differed on the question of recidivism.

As we noted above, this Court may not re-weigh the evidence or substitute

its judgment for     that of   the   trial court sitting as the    fact-finder.

Commonwealth v. Mobley, 14 A.3d 887, 889–90 (Pa. Super. 2011).

Accordingly, we reject Appellant’s argument as lacking merit.



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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2016




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