J. A04008/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                  v.                   :
                                       :
JAMES E. MASKIL, JR.,                  :         No. 2066 WDA 2014
                                       :
                        Appellant      :


                 Appeal from the Order, November 20, 2014,
            in the Court of Common Pleas of Washington County
              Criminal Division at No. CP-63-CR-0000873-2013


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND SHOGAN, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED APRIL 25, 2016

     James E. Maskil, Jr., appeals from the November 20, 2014 order

entered in the Court of Common Pleas of Washington County that classified

him as a sexually violent predator (“SVP”). We affirm.

     The record reflects that appellant was charged with one count each of

involuntary deviate sexual intercourse with a child, indecent assault with a

person less than 13 years of age, corruption of minors, and endangering

welfare of children.1   The charges resulted from allegations by the minor

victim, who was the daughter of appellant’s live-in girlfriend and who also

lived in the home, that appellant and his minor son forced her to engage in

sexual acts from the time that she was approximately 7 years old until she


1
   18 Pa.C.S.A. § 3123(b), 18 Pa.C.S.A. § 3126(a)(7), 18 Pa.C.S.A.
§ 6301(a)(1)(ii), and 18 Pa.C.S.A. § 4304(a), respectively.
J. A04008/16


was approximately 14. At the relevant times, appellant was approximately

36 to 43 years old.

      After pleading no contest to one count of corruption of minors and one

count of endangering welfare of children, the trial court ordered appellant to

be assessed by the Sexual Offender Assessment Board (“SOAB”) to

determine whether he met the SVP criteria.         The court also sentenced

appellant to 6 to 23 months of electronic home monitoring on the corruption

count and a consecutive 3-year term of probation on the endangering

welfare of children count. In return for his plea, the Commonwealth nolle

prossed the other two charges. Following the SVP hearing, the trial court

entered an order classifying appellant as an SVP. This appeal followed.

      Appellant raises one issue for our review:

            WHETHER THE HONORABLE TRIAL COURT ERRED IN
            CLASSIFYING THE APPELLANT AS A SEXUALLY
            VIOLENT PREDATOR WHERE THE COMMONWEALTH
            FAILED TO PROVE BY CLEAR AND CONVINCING
            EVIDENCE THAT THE APPELLANT IS A SEXUALLY
            VIOLENT PREDATOR PURSUANT TO 42 PA. C.S.A.
            § 9799.12,   WHERE    THE   COMMONWEALTH
            PRESENTED INSUFFICIENT EVIDENCE AT THE
            HEARING TO DETERMINE WHETHER THE TRIAL
            COURT SHOULD CLASSIFY THE APPELLANT AS A
            SEXUALLY VIOLENT PREDATOR?

Appellant’s brief at 3.

      The standards governing our review of the sufficiency of the evidence

with respect to an SVP determination are well established:

            A challenge to the sufficiency of the evidence is a
            question of law subject to plenary review. We must


                                    -2-
J. A04008/16


                determine whether the evidence admitted at [the
                SVP hearing] and all reasonable inferences drawn
                therefrom, when viewed in the light most favorable
                to the Commonwealth as the verdict winner, is
                sufficient to support all elements of the [statute]. A
                reviewing court may not weigh the evidence or
                substitute its judgment for that of the trial court.

                At a hearing prior to sentencing the court shall
                determine whether the Commonwealth has proved
                by clear and convincing evidence that the individual
                is a sexually violent predator. In reviewing the
                sufficiency   of   the  evidence     regarding    the
                determination of SVP status, we will reverse the trial
                court only if the Commonwealth has not presented
                clear and convincing evidence sufficient to establish
                each element required by the statute.

Commonwealth v. Evans, 901 A.2d 528, 534 (Pa.Super. 2006), appeal

denied, 909 A.2d 303 (Pa. 2006) (citations omitted; bracketed information

in original).

      The Sex Offender Registration and Notification Act, 42 Pa.C.S.A.

§ 9791, et seq. (“SORNA”), defines a “sexually violent predator” as:

                [a] person who has been convicted of a sexually
                violent offense as set forth in § 9795.1 (relating to
                registration) and who is determined to be a sexually
                violent predator under § 9795.4 (relating to
                assessments) due to a mental abnormality or
                personality disorder that makes the person likely to
                engage in predatory sexually violent offenses.

42 Pa.C.S.A. § 9792.           SORNA defines “mental abnormality” 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



                                        -3-
J. A04008/16


menace to the health and safety of other persons.”             Id.    In turn, SORNA

defines “predatory” as “[a]n 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 facilitate or support victimization.”

Id.

      Among the relevant sections of SORNA, Section 9795.4 provides:

            § 9795.4. Assessments

            (a)   Order for assessment.--After conviction but
                  before sentencing, a court shall order an
                  individual convicted of an offense specified in
                  section 9795.1 (relating to registration) 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.

            (b)   Assessment.--Upon receipt from the court of
                  an order for an assessment, a member of the
                  board as designated by the administrative
                  officer of the board shall conduct an
                  assessment of the individual to determine if
                  the individual should be classified as a sexually
                  violent predator.    The board shall establish
                  standards for evaluations and for evaluators
                  conducting the assessments. An assessment
                  shall include, but not be limited to, an
                  examination of the following:

                  (1)      Facts of      the   current    offense,
                           including:

                           (i)    Whether    the     offense
                                  involved multiple victims.

                           (ii)   Whether the individual
                                  exceeded  the  means



                                         -4-
J. A04008/16


                             necessary to achieve the
                             offense.

                     (iii)   The nature of the sexual
                             contact with the victim.

                     (iv)    Relationship     of     the
                             individual to the victim.

                     (v)     Age of the victim.

                     (vi)    Whether    the    offense
                             included a display of
                             unusual cruelty by the
                             individual  during    the
                             commission of the crime.

                     (vii) The mental capacity of
                           the victim.

               (2)   Prior offense history, including:

                     (i)     The    individual’s   prior
                             criminal record.

                     (ii)    Whether the individual
                             completed  any   prior
                             sentences.

                     (iii)   Whether the individual
                             participated in available
                             programs     for  sexual
                             offenders.

               (3)   Characteristics of the individual,
                     including:

                     (i)     Age of the individual.

                     (ii)    Use of illegal drugs by
                             the individual.




                                    -5-
J. A04008/16


                            (iii)   Any    mental      illness,
                                    mental    disability     or
                                    mental abnormality.

                            (iv)    Behavioral characteristics
                                    that contribute to the
                                    individual’s conduct.

                     (4)    Factors that are supported in a
                            sexual offender assessment field as
                            criteria reasonably related to the
                            risk of reoffense.

42 Pa.C.S.A. § 9795.4. The above section delineates a non-exclusive list of

factors to consider in the SVP assessment of a defendant. It cannot be said,

however, that each factor will be of relevance in every case or that the

presence or absence of any of the enumerated factors will be decisive in the

determination.   Commonwealth v. Meals, 912 A.2d 213, 222-223 (Pa.

2006).

        Here, the trial court conducted the SVP hearing on November 18,

2014.          The         Commonwealth        presented     the   testimony    of

Julia Lindemuth, M.S., who has been a member of SOAB since 2010 and who

has been treating sexual offenders since 1999.                (Notes of testimony,

11/18/14 at 7-8.)          An investigator conducted appellant’s interview, and

Ms. Lindemuth reviewed that evaluation.               (Id. at 15-16.)    Although

Ms. Lindemuth offered appellant an interview on several occasions, he failed

to respond. (SVP assessment report, 6/8/14 at 3.) Ms. Lindemuth testified,

however, that the investigator’s evaluation contained sufficient information




                                          -6-
J. A04008/16


to generate an SVP assessment report.      (Notes of testimony, 11/18/14 at

16-17.) The trial court admitted the report into evidence. (Id. at 10.)

      In her testimony and in her report, Ms. Lindemuth stated that:       the

current offense did not involve multiple victims; although appellant did not

exceed the means necessary to achieve the offense, he used his position as

the child’s father figure, as well as threats of groundings, and bribes to gain

compliance and silence; appellant received oral sex from the victim and, on

occasion, fondled her breasts; the victim viewed appellant as a father figure,

often referred to him as “dad,” and appellant acted as the child’s caretaker;

the onset of abuse was between the victim’s 7th and 8th birthdays and

continued until she was approximately 13 years old; there was no evidence

of unusual cruelty or sadistic sexual behavior; the victim did not have any

specific mental disabilities, but her young age and prepubescence made her

vulnerable; the victim was the previous victim of abuse, and the abuser was

appellant’s son; appellant’s prior adult offense history included multiple

driving under the influence convictions, criminal trespass, and charges

relating to appellant’s violation of a protection from abuse order; the onset

of abuse occurred when appellant was approximately 37 years old, and, as a

result, he met the age criteria for the DSM-5 for a mental disorder and/or

personality disorder; and appellant has a history of reckless and harmful

behavior towards others. (Id. at 19-21; SVP assessment report, 6/8/14 at

9-12.)



                                     -7-
J. A04008/16


      Ms. Lindemuth determined that appellant suffers from pedophilic

disorder, nonexclusive type, as follows:

            Based on the information available, [appellant]
            meets the diagnostic criteria for Pedophilic Disorder
            Non-Exclusive which is considered a congenital or
            acquired condition. Pedophilic Disorder is defined by
            the Diagnostic and Statistical Manual – Fifth Edition
            (DSM-5)[2] as follows: “Over a period of at least 6
            months, recurrent, intense sexually arousing
            fantasies, sexual urges, or behaviors involving
            sexual activity with a prepubescent child or children
            (generally age 13 years or younger). The individual
            has acted on these sexual urges, or the sexual urges
            or fantasies cause marked distress or interpersonal
            difficulty. The individual is at least age 16 year[s]
            and at least 5 years older than the child or children.”
            It is important to note that some individuals with
            Pedophilic Disorder are only attracted to children,
            which is referred to as Exclusive Type, whereas
            others are also attracted to adults, this is referred to
            as Non-Exclusive Type. [Appellant’s] behaviors are
            consistent [with] Pedophilia, Non-Exclusive Type.

            Individuals may deny experiences, impulses or
            fantasies involving children and additionally they
            may deny feeling distressed. The DSM-5 indicates
            such individuals may still be diagnosed with
            pedophilic   disorder    despite   the     absence of
            self-reported distress, provided there is evidence of
            recurrent behaviors persisting for 6 months and
            evidence the individual has acted on sexual urges or
            experienced     interpersonal    difficulties   as  a
            consequence of the disorder.

SVP assessment report, 6/8/14 at 13 (emphasis in original).




2
 The manual is a classification of mental disorders developed and published
under the auspices of the American Psychiatric Association.


                                     -8-
J. A04008/16


      Ms. Lindemuth’s determination that appellant suffered from pedophilic

disorder, nonexclusive type, established the requirement that appellant had

a mental abnormality required for making a determination that he was an

SVP under SORNA. We further note that appellant’s expert did not dispute

Ms. Lindemuth’s conclusion that appellant suffers from pedophilic disorder.

      With regard to the predatory nature of appellant’s acts, Ms. Lindemuth

stated:

            [Appellant] was in a caretaker role, and was referred
            to as “Dad” by the victim. He was a trusted family
            member. The victim was a young prepubescent child
            who had been raped by [appellant’s] juvenile son.
            She approached [appellant] for help, by disclosing
            the abuse perpetrated by his son.         Instead of
            protecting the child, [appellant] took advantage of
            the situation and began to sexually assault the child.
            He used threats and bribes to gain the child’s
            compliance and silence. It is this Board Member’s
            opinion that [appellant’s] behaviors meet the
            statute[’s] definition of predatory.

SVP assessment report, 6/8/14 at 15.

      The record, therefore, supports the finding that appellant’s acts were

predatory because he directed his acts at a child with who lived in his home

and who viewed him as a father figure, and he used that relationship to

facilitate his victimization.   We note that appellant does not dispute

Ms. Lindemuth’s conclusion that appellant’s acts were predatory in nature.

      The gravamen of appellant’s complaint is that there was insufficient

evidence that appellant would re-offend. The crucial evidence regarding the

question of whether appellant would re-offend was Ms. Lindemuth’s


                                    -9-
J. A04008/16


determination that appellant is a pedophile, a conclusion that appellant’s

expert did not disagree with.     With respect to appellant’s likelihood of

re-offending, Ms. Lindemuth opined:

           According to [DSM-5], Pedophilia appears to be a
           lifelong condition. The behaviors may increase in
           response to psychosocial stressors, in relation to
           other mental disorders, or with increased opportunity
           to engage in Paraphilia. The course of pedophilic
           disorder may fluctuate, increase, or decrease with
           age but remains a lifelong condition.

           ...
           It is this Board Member’s opinion that Pedophilic
           Disorder is the impetus behind [appellant’s] inability
           to maintain his own volitional/emotional control. The
           prolonged abuse signifies difficulty controlling his
           sexual impulses and failing to adequately exhibit
           control over his actions. The inability to control
           deviant impulses is a result of the disorder.

           ...
           There are two pathways known to be associated with
           lifetime reoffending, chronic antisociality and sexual
           deviancy.     The behavior pattern in the instant
           offense is consistent with chronic sexual deviancy.
           [Appellant] sexually assaulted the child victim over
           the course of several years which included multiple
           instances of oral sex and fondling.          Pedophilic
           disorder is a long-term, persistent disorder and can
           impair or affect a person’s ability to control such
           impulses, thus increasing the likelihood of re-
           offense.    This pattern of behavior supports the
           conclusion that [appellant’s] condition of Pedophilic
           disorder increases the likelihood of re-offending.

SVP assessment report, 6/8/14 at 14-15.

     Here, appellant identifies “the main conflict” between the experts to be

“their belief as to whether [a]ppellant was likely to re-offend in sexually



                                   - 10 -
J. A04008/16

victimizing a prepubescent child.”        (Appellant’s brief at 8.)    Appellant

contends that because appellant exhibited less than half of the factors

required for consideration by the SOAB, the Commonwealth’s evidence was

insufficient. We disagree.

      It is well settled that the presence or absence of an enumerated factor

is not determinative in the SVP classification and that not all factors are

relevant in every case. Meals, 912 A.2d at 222-223. Moreover, it is not our

role to re-weigh the SVP classification factors, as appellant invites us to do.

Our role is to view the evidence admitted at the SVP hearing and all

reasonable inferences drawn therefrom in the light most favorable to the

Commonwealth as verdict winner and to determine whether that evidence

was sufficient to support the trial court’s order classifying appellant as an

SVP. We have done so, and based upon our careful review of the evidence

and   testimony   presented    at   the   SVP   hearing,   we   find   that   the

Commonwealth presented clear and convincing evidence to support the trial

court’s order that classified appellant as an SVP.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/25/2016



                                     - 11 -
