J-S65013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LANCE MOORE                                :
                                               :
                       Appellant               :   No. 510 MDA 2019

        Appeal from the Judgment of Sentence Entered October 2, 2018
                 In the Court of Common Pleas of York County
            Criminal Division at No(s): CP-67-CR-0000805-2017


BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY PANELLA, P.J.:                               FILED MAY 19, 2020

        Lance Moore appeals from the judgment of sentence imposed October

2, 2018, in the York County Court of Common Pleas, made final by the denial

of post-sentence motions on February 27, 2019. On July 11, 2018, a jury

convicted Moore of indecent assault (by forcible compulsion) and criminal

attempt to commit involuntary deviate sexual intercourse (“IDSI”) (by forcible

compulsion).1 The trial court sentenced Moore to an aggregate term of 123 to

246 months’ incarceration. The court also determined Moore met the criteria

for classification as a sexually violent predator (“SVP”) pursuant to Subchapter



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*   Retired Senior Judge assigned to the Superior Court.

1   See 18 Pa.C.S.A. §§ 3126(a)(2) and 901(a), respectively.
J-S65013-19


H of the Pennsylvania’s Sexual Offender Registration and Notification Act

(“SORNA II”).2 On appeal, Moore alleges the trial court erred: (1) by

improperly penalizing him for maintaining his innocence when the court

imposed a sentence in the aggravated range after noting that Moore had

shown no remorse at sentencing; (2) by designating him an SVP and finding

there was sufficient evidence to support that determination. Based on the

following, we affirm.

        On January 13, 2017, Moore sexually assaulted his 81-year-old mother

(“the victim”) at her home where she lived with Moore. He was charged with

rape, sexual assault, indecent assault, attempted IDSI, and incest. At the

conclusion of a one-day trial on July 11, 2018, a jury found him guilty of

indecent assault and attempted IDSI, and not guilty of the remaining charges.

That same day, the court ordered a presentence investigation report, and

directed the Commonwealth to secure an assessment of Moore to determine

if he met the criteria for classification as an SVP.3

        On October 2, 2018, the court conducted a combined SVP and

sentencing hearing. The trial court agreed with the Sexual Offender

Assessment Board’s (“SOAB”) assessment that Moore met the criteria for



____________________________________________


2   See 42 Pa.C.S.A. §§ 9799.10-9799.41.

3   See 42 Pa.C.S.A. § 9799.24.



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classification as an SVP as a Tier III offender.4 The court then sentenced him

to a term of 21 to 42 months’ incarceration for the indecent assault

conviction,5 and a consecutive term of 102 to 204 months’ imprisonment for

the attempted IDSI crime.6 Moore filed a post-sentence motion, which was

denied February 27, 2019. This timely appeal followed.7

        In Moore’s first argument, he complains the trial court improperly

penalized him for maintaining his innocence when it imposed an aggravated

range sentence after finding he had “shown no remorse whatsoever” for the

offenses he denied committing. Appellant’s Brief, at 18.

        Moore’s issue concerns a challenge to the discretionary aspects of his

sentence, and, accordingly, is not appealable as of right, but “must be

considered a petition for permission to appeal.” Commonwealth v. Best, 120



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4   42 Pa.C.S.A. § 9799.14(d).

5 The indecent assault offense was graded as a first-degree misdemeanor.
Moore had a prior record score (“PRS”) of five, and the offense gravity score
(“OGS”) was five. The standard range sentence was one-and-a-half to three
years’ incarceration. Therefore, Moore’s 21-to-42 months’ sentence was in the
aggravated range. See N.T., 10/2/2018, at 48.

6The attempted IDSI conviction was graded as a first-degree felony. Moore
had a PRS of five, and OGS was 11. The standard range sentence was 72 to
90 months’ imprisonment. Accordingly, Moore’s 102-to-204 months’ sentence
was also in the aggravated range. See N.T., 10/2/2018, at 48-49.

7 On March 28, 2019, the court ordered Moore to file a concise statement of
errors complained of on appeal under Pa.R.A.P. 1925(b). Moore complied with
the court’s directive, and filed a concise statement, on April 18, 2019. On May
10, 2019, the trial court issued an opinion under Pa.R.A.P. 1925(a).

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A.3d 329, 348 (Pa. Super. 2015) (quotation omitted). To reach the merits of

a discretionary issue, this Court must determine:

      (1) whether appellant has filed a timely notice of appeal; (2)
      whether the issue was properly preserved at sentencing or in a
      motion to reconsider and modify sentence; (3) whether
      appellant’s brief has a fatal defect; and (4) whether there is a
      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) (citation

omitted).

      Here, Moore’s appeal is in technical compliance with the requirements

to challenge the discretionary aspects of his sentence. Moore filed a timely

appeal and a post-sentence motion, and he provided a Pa.R.A.P. 2119(f)

statement in his brief. Therefore, we must determine whether Moore has

presented a substantial question.

      The determination of what constitutes a substantial question must
      be evaluated on a case-by-case basis. A substantial question
      exists only when the appellant advances a colorable argument
      that the sentencing judge’s actions were either: (1) inconsistent
      with a specific provision of the Sentencing Code; or (2) contrary
      to the fundamental norms which underlie the sentencing process.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations

and quotation marks omitted).

      Relying on Commonwealth v. Bowen, 975 A.2d 1120 (Pa. Super.

2009), Moore states he raised a substantial question by arguing that his

aggravated range sentence was based on an unconstitutional factor –

specifically,   the   court   violated   his   constitutional   rights   against   self-


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incrimination “when it sentenced [him] more harshly because he did not

concede guilt at sentencing and continued to maintain his innocence.”

Appellant’s Brief, at 19. In Bowen, a panel of this Court determined an

appellant raised a substantial question where he asserted that his aggravated

range sentence was based on an unconstitutional factor. See Bowen, 975

A.2d at 1122. Accordingly, we conclude Moore has raised a substantial

question, and we will consider the merits of his claim.

      We begin with our well-settled standard of review:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant must establish, by reference to the record, that the
      sentencing court ignored or misapplied the law, exercised its
      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)

(citation omitted). Additionally, we are bound by the statutory dictates of 42

Pa.C.S.A. § 9781(c), which are, in pertinent part, as follows:

      The appellate court shall vacate the sentence and remand the case
      to the sentencing court with instructions if it finds:

                                      …

            (2) the sentencing court sentenced within the sentencing
            guidelines but the case involves circumstances where the
            application  of   the    guidelines   would  be   clearly
            unreasonable[.]




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42 Pa.C.S.A. § 9781(c)(3).8

       In Bowen, the defendant was charged with multiple offenses, including

simple assault and terroristic threats. He invoked his constitutional right not

to testify during the jury trial, and maintained his silence at sentencing. The

court imposed a standard range sentence for the simple assault crime and a

consecutive, aggravated range sentence for the terrorist threats conviction.

In justifying the aggravated range sentence, the court “noted [the

defendant]’s poor employment history, long history of recidivism, and the

victim’s emotional trauma. The court also indicated that [the defendant] failed

to show any remorse for his crimes or to take responsibility for them, even

after the jury’s decision.” Bowen, 975 A.2d at 1121-1122. On appeal, the

defendant argued that “the trial court violated his Fifth Amendment rights by

considering his silence as reflective of his lack of remorse.” Id. at 1122.



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8 Additionally, “[w]hen imposing a sentence, a court is required to consider
the particular circumstances of the offense and the character of the
defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002)
(citation omitted). “In particular, the court should refer to the defendant’s
prior criminal record, his age, personal characteristics, and his potential for
rehabilitation.” Id. A court must also impose a sentence that is consistent with
not only protection of the public, but also the gravity of the offense as it relates
to the impact on the life of the victim and community. See 42 Pa.C.S.A. §
9721(b). Where the court had the benefit of a presentence investigation report
(“PSI”), we assume the court “was aware of the relevant information regarding
the defendant’s character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Devers, 546 A.2d 12, 18
(Pa. 1988).



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       The Bowen Court held that based on prior case law,9 “it is undoubtedly

appropriate for a trial court to consider a defendant’s lack of remorse as a

factor at sentencing, provided that it is specifically considered in relation to

protection of the public, the gravity of the offense, and the defendant’s

rehabilitative needs.” Id. at 1125 (citation omitted). In other words, “silence

at sentencing may not be the sole factor in determining a defendant’s lack of

remorse.” Id. at 1121. The Bowen Court further held that “a court may not

consider a defendant’s silence at sentencing as indicative of his failure to take

responsibility for the crimes of which he was convicted.” Id. The panel

concluded that although the trial court had improperly relied upon Bowen’s

silence at sentencing, a remand for resentencing was avoidable because the

trial court cited numerous other factors in imposing the defendant’s sentence.

See id. at 1128.

       Turning the present matter, Moore misconstrues Bowen by stating that

the court improperly sentenced him for showing no remorse and erred by

penalizing him for maintaining his innocence. See Appellant’s Brief, at 18. As

the trial court properly opined:

       In the instant case, and unlike the [d]efendant in Bowen, [Moore]
       was not silent at sentencing, but instead made a lengthy
       statement where he blamed everyone else and went on at length
       about himself, his life, and how this conviction would affect him.
       Moreover, [Moore]’s lack of remorse was but one factor among
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9See Mitchell v. United States, 526 U.S. 314 (1999); Commonwealth v.
Begley, 780 A.2d 605 (Pa. 2001).


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      several that the [t]rial [c]ourt considered in imposing an
      aggravated range sentence. In addition, it was considered
      specifically in relation to the gravity of the offense for which
      [Moore] was convicted.

Trial Court Opinion, 5/10/2019, at 4-5 (record citations omitted).

      Accordingly, Bowen is distinguishable from the present matter because

Moore did not invoke his right to remain silent at his sentencing hearing. See

N.T., 10/2/2018, at 22-44 (Moore’s allocution at sentencing). Furthermore,

our review of the sentencing hearing reveals the trial court did not abuse its

discretion when imposing Moore’s aggravated range sentences. Rather, the

trial court properly considered his lack of remorse as one factor when imposing

sentences that were consistent with the protection of the public, took into

account the gravity of the offense as it related to the impact on the life of the

victim and on the community, and considered Moore’s rehabilitative needs

pursuant to Section 9721(b). See Bowen, 975 A.2d at 1125. See also N.T.,

10/2/2018, at 49-50; Memorandum Order Denying Defendant’s Post-

Sentence Motion, 2/27/2019, at 9-11. Therefore, Moore’s first argument fails.

      Next, Moore claims that his SVP designation must be vacated because

it was entered in violation of this Court’s decision in Commonwealth v.

Butler, 173 A.3d 1212 (Pa. Super. 2017) (“Butler I”), and cannot be

salvaged based on the notion that the court made the designation “beyond a

reasonable doubt.” Appellant’s Brief, at 22. He states:

      Although the legislature passed Act 10 of 2018, which created a
      new registration scheme for retroactive application, it left the SVP
      designation procedure unchanged. And though the sentencing

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       court purported to obviate the problem by claiming to find beyond
       a reasonable doubt that Moore is an SVP, the clear-and-convincing
       standard cannot be severed from the defective designation
       procedure and the evidence fell well short of proof beyond a
       reasonable doubt.

Id.

       A challenge to the legality of a sentence is a question of law. Therefore,

our standard of review is de novo, and our scope of review is plenary. See

Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa. Super. 2012).

       Preliminarily, we note this Court’s decision in Butler I was recently

reversed by the Pennsylvania Supreme Court. See Commonwealth v.

Butler, __ A.3d __ [25 WAP 2018] (Pa., filed March 26, 2020) (“Butler II”).

Nevertheless, it is imperative to delineate the historical background that led

to our Supreme Court’s decision in Butler II.

       In 2011, the Pennsylvania General Assembly passed SORNA I10 in order

to comply with the Adam Walsh Child Protection and Safety Act of 2006, Pub.

L. 109-248, as amended, 34 U.S.C. §§ 20911, et seq. However, in

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), a plurality of the

Pennsylvania Supreme Court concluded the registration requirements of

SORNA I, as applied retroactively, were punitive pursuant to the seven-factor

test set forth by the United States Supreme Court in Kennedy v. Mendoza-

Martinez, 372 U.S. 144 (1963), and therefore unconstitutional under the ex


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10Act of Dec. 20, 2011, P.L. 446, No. 111, as amended, 42 Pa.C.S. §§ 9799.10
to 9799.41 (effective Dec. 20, 2012).

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post facto clauses of the United States and Pennsylvania Constitutions. See

Muniz, 164 A.3d at 1223.

      Subsequently, in Butler I, a divided, three-judge panel of this Court

addressed the issue of whether the procedure for making SVP determinations

under 42 Pa.C.S.A. § 9799.24(e)(3) was unconstitutional. The Butler I Court

stated “Muniz was a sea change in the longstanding law of this

Commonwealth as it determined that the registration requirements under

SORNA are not civil in nature but a criminal punishment.” Butler I, 173 A.3d

at 1215. Extrapolating from Muniz, the Butler I Court concluded the

statutory mechanism for designating a defendant as an SVP under Section

9799.24(e)(3) was “constitutionally flawed” pursuant to the United States

Supreme Court’s decisions in Alleyne v. United States, 570 U.S. 99 (2013),

and Apprendi v. New Jersey, 530 U.S. 466 (2000), because the statute

designated the trial court as the fact-finder in all instances and specified “clear

and convincing” evidence as the burden of proof. Butler I, 173 A.3d at 1218.

      Accordingly, the Butler I Court held: “[A] factual finding, such as

whether a defendant has a mental abnormality or personality disorder that

makes him … likely to engage in predatory sexually violent offenses, that

increases the length of registration must be found beyond a reasonable doubt

by the chosen fact-finder.” Id. The Butler I Court stated that “trial courts

may no longer designate convicted defendants as SVPs, nor may they hold

SVP hearings, until our General Assembly enacts a constitutional designation


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mechanism.” Id. Furthermore, the Butler I panel determined lifetime

registration, notification, and counseling requirements (“RNC requirements”)

applicable to SVPs, pursuant to 42 Pa.C.S.A. § 9799.15, 9799.16, 9799.26,

9799.27, and 9799.36, constituted increased criminal punishment that were

in violation of Alleyne/Apprendi.

        In response to Muniz and Butler I, the Pennsylvania General Assembly

enacted legislation to amend several provisions of SORNA and to provide for

several new sections. See Act of Feb. 21 2018, P.L. 27, No. 10 (“Act 10”).11

Subsequently, the Governor of Pennsylvania signed new legislation, effective

June 12, 2018, that struck the Act 10 amendments and reenacted certain

SORNA provisions. See Act of June 12, 2018, P.L. 1952, No. 29 (“Act 29”).

See Commonwealth v. Alston, 212 A.3d 526, 529 (Pa. Super. 2019). Act

10 and Act 29 are collectively known as “SORNA II.” See Commonwealth v.

Lee Andrew Moore, 222 A.3d 16 (Pa. Super. 2019).

        In relevant part, SORNA II created Subchapter H, which imposes certain

obligations on offenders who committed offenses on or after December 20,

2012 (the date SORNA I became effective).12 Subchapter H included a

provision, which allowed SVPs, and other lifetime registrants, the opportunity

to petition for removal from the registry after 25 years.


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11   See 42 Pa.C.S.A. §§ 9799.42, 9799.51-9799.75.

12Subchapter H is applicable to the present case where Moore committed the
sexual offense on January 13, 2017.

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      SORNA II also added Subchapter I, which is applicable to offenders who

are convicted of certain offenses on or after April 22, 1996 but before

December 20, 2012. Muniz directly applied to Subchapter I offenders.

      During this time, the Commonwealth filed a petition for allowance of

appeal in Butler I, which our Supreme Court granted to address the issue of

whether the procedure used to designate certain individuals convicted of

sexual   offenses   as   SVPs,   codified     at   Section   9799.24(e)(3),   was

constitutionally permissible in light of its decision in Muniz. See Butler II,

__ A.3d __, __ [25 WAP 2018, *1] (Pa., filed March 26, 2020). “[T]he parties

dispute[d] whether the Muniz Court’s holding regarding criminal punishment

automatically applies to all individuals falling under the purview of SORNA,

including SVPs, or whether a separate analysis of the RNC requirements must

be conducted with a specific focus on SVPs.” Butler II, __ A.3d __, __ [25

WAP 2018, *6] (Pa., filed March 26, 2020).

      Specifically, the Commonwealth contended that Muniz did not control

because SVPs were subject to their own body of case law, which provided that

“the government is empowered to address the heightened danger posed by

SVPs through measures beyond those imposed on non-SVPs without the

resulting approach constituting criminal punishment.” Id., at *16 (citation and

quotation marks omitted). Whereas the appellee responded that Butler I was

proper in light of Muniz. Moreover, the appellee asserted the entirety of

Subchapter H, including the SVP scheme, remains increased criminal


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punishment and the recent changes “did not render Subchapter H nonpunitive

as the statute continues to require strict compliance and its enforcement

provisions remain in the crimes code.” Id., at *26.

     In reversing, the Butler II Court pointed out that the Butler I panel

“concluded Muniz was dispositive – without conducting any analysis regarding

either the differences between the RNC requirements and the requirements at

issue in Muniz or the differences between SVPs and other sex offenders.”

Butler II, __ A.3d __, __ [25 WAP 2018, *4] (Pa., filed March 26, 2020).

     The Butler II Court opined:

     SVPs are different from the non-SVP SORNA registrants at issue
     in Muniz due to heightened public safety concerns based on the
     determination SVPs have “a mental abnormality or personality
     disorder that makes the individual likely to engage in predatory
     sexually violent offenses.” 42 Pa.C.S. §9799.12. Therefore, a
     simple extrapolation from the analysis in Muniz is insufficient to
     determine whether the RNC requirements constitute criminal
     punishment.

Butler II, __ A.3d __, __ [25 WAP 2018, *30-31] (Pa., filed March 26, 2020).

     The Supreme Court then conducted an examination of the RNC

requirements as applicable to SVPs using the two-part inquiry employed in

both Commonwealth v. Williams, 832 A.2d 962 (Pa. 2003) (“Williams




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II”)13 and Muniz.14 First, the Butler II Court determined the General

Assembly’s intention with respect to Subchapter H was nonpunitive in nature.

Butler II, __ A.3d __, __ [25 WAP 2018, *31-34] (Pa., filed March 26, 2020).

Next, the Court considered the Mendoza-Martinez factors15 and determined


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13 In Williams II, the Pennsylvania Supreme Court determined the RNC
requirements of SORNA’s predecessor, Megan’s Law II, were constitutional
and not intended to be criminal punishment in nature.

14   The two-part inquiry is set forth in Muniz as follows:

        We first consider whether the General Assembly’s “intent was to
        impose punishment, and, if not, whether the statutory scheme is
        nonetheless so punitive either in purpose or effect as to negate
        the legislature’s non-punitive intent.” If we find the General
        Assembly intended to enact a civil scheme, we then must
        determine whether the law is punitive in effect by considering the
        Mendoza-Martinez factors. We recognize only the “clearest
        proof” may establish that a law is punitive in effect. Furthermore,
        in determining whether a statute is civil or punitive, we must
        examine the law's entire statutory scheme.

Muniz, 164 A.3d at 1208, quoting Williams II, 832 A.2d at 971.

15   The Mendoza-Martinez test is a balancing of the following factors:

        (1) whether the sanction involves an affirmative disability or
        restraint; (2) whether it has historically been regarded as
        punishment; (3) whether it comes into play only on a finding of
        scienter; (4) whether its operation will promote the traditional
        aims of punishment--retribution and deterrence; (5) whether the
        behavior to which it applies is already a crime; (6) whether an
        alternative purpose to which it may rationally be connected is
        assignable for it; and (7) whether it appears excessive in relation
        to the alternative purpose assigned.

Williams II, 832 A.2d at 973 (citation omitted).



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the punitive factors did not outweigh the nonpunitive ones. Id., at *34-44.

The Court opined:

        Although we recognize the RNC requirements impose affirmative
        disabilities or restraints upon SVPs, and those requirements have
        been historically regarded as punishment, our conclusions in this
        regard are not dispositive on the larger question of whether the
        statutory requirements constitute criminal punishment. This is
        especially so where the government in this case is concerned with
        protecting the public, through counseling and public notification
        rather than deterrent threats, not from those who have been
        convicted of certain enumerated crimes, but instead from those
        who have been found to be dangerously mentally ill. Under the
        circumstances, and also because we do not find the RNC
        requirements to be excessive in light of the heightened
        public safety concerns attendant to SVPs, we conclude the
        RNC requirements do not constitute criminal punishment.

Id., at *44 (citation omitted; emphasis added). The Court further held “the

procedure for designating individuals as SVPs under Section 9799.24(e)(3) is

not subject to the requirements for Apprendi and Alleyne and remains

constitutionally permissible.” Id., at *2.

        Turning the present matter, in light of the Supreme Court’s decision in

Butler II, we conclude the trial court did not err in conducting an SVP hearing

and    designating    Moore     an    SVP      pursuant   to   Section   9799.24(e)(3).

Accordingly, his second argument fails.16

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16   We note:

        When th[e Pennsylvania Supreme] Court issues a ruling that
        overrules prior law, expresses a fundamental break from
        precedent, upon which litigants may have relied, or decides an
        issue of first impression not clearly foreshadowed by precedent,



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       Lastly, Moore asserts there was insufficient evidence to support his SVP

determination. Specifically, he states:

       Even the Commonwealth’s expert, Dr. Stein, acknowledged Moore
       had no prior sex offenses and his alleged paraphilia only
       manifested at the age of 47. And he announced no standard at all
       for the strength of his determination, stating only that he believed
       Moore “meets the criteria for a sexually violent predator * * * to
       a degree of scientific certainty….” The court, armed with less
       information and expertise than Dr. Stein on this matter, was in no
       position to go beyond Dr. Stein’s findings and deem Moore to be
       an SVP under a higher standard.

Appellant’s Brief, at 30-31 (record citations omitted).

       “[I]n   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

enable the trial court to determine that each element required by the statute

has been satisfied.” Commonwealth v. Moody, 843 A.2d 402, 408 (Pa.

Super. 2004) (citation omitted).

       Clear and convincing evidence means that witnesses must be
       found to be credible, that the facts to which they testify are
____________________________________________


       th[e Supreme] Court announces a new rule of law. One of the
       hallmarks of whether th[e Supreme] Court has issued a new rule
       of law is if the decision overrules, modifies, or limits any previous
       opinions of th[e Supreme] Court. While retroactive application of
       a new rule of law is a matter of judicial discretion usually exercised
       on a case-by-case basis, the general rule is that the decision
       announcing a new rule of law is applied retroactively so that a
       party whose case is pending on direct appeal is entitled to the
       benefit of the changes in the law.

In the Interest of L.J., 79 A.3d 1073, 1087 (Pa. 2013) (quotations and
quotation marks omitted).

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      distinctly remembered and the details thereof narrated exactly
      and in due order, and that their testimony is so clear, direct,
      weighty, and convincing as to enable the jury to come to a clear
      conviction, without hesitancy, of the truth of the precise facts in
      issue.

Id. (citation and internal quotation marks omitted). A sexually violent

predator is defined as “an individual who committed 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 individual likely to engage

in predatory sexually violent offenses.” 42 Pa.C.S.A. § 9799.12.

      There is no dispute that Moore has been convicted of a sexually violent

offense. As a result, Moore’s issue turns on whether the evidence was

sufficient to establish that he suffers from an abnormality that makes him

likely to reoffend. Subchapter H sets out several areas that need to be

considered when making an SVP determination:

      (1) Facts of the current offense, including:

          (i)    Whether the offense involved multiple victims.

          (ii)   Whether the individual exceeded the means
                 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.

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          (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.

          (ii) Use of illegal drugs.

          (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. § 9799.24(b).

     Here, the trial court explained its rationale in designating Moore as an

SVP as follows:

     The only evidence presented at the SVP hearing was the
     uncontradicted testimony of Dr. Robert Stein. Dr. Stein testified
     as to his qualifications to perform an SVP Assessment. Dr. Stein
     has been a member of the Pennsylvania Sexual Offenders
     Assessment Board since 1998, and has performed approximately
     2500 assessments. Defense Counsel questioned Dr. Stein on
     cross-examination as to his qualifications, and did not object to
     him testifying as an expert in the area of sex offender
     assessments.

     Dr. Stein conducted an SVP Assessment on August 27, 2018, and
     issued a report regarding that assessment. Despite [Moore]’s
     contention to the contrary, Dr. Stein was not vague in his
     testimony. Dr. Stein considered the fifteen (15) different factors
     set forth in the statute for their relevance as to the opinions of
     mental abnormality and predatory behavior. Dr. Stein considered
     the following factors to be relevant in this case:




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           There was [s]ignificant force used as reported by the Victim;
            and

           The acts [Moore] was convicted of included attempt at
            penetrative sexual assault;

           The fact that the Victim is [Moore]’s mother, which is
            consistent with deviant sexual interest; and

           The fact that the Victim was 81 years of age at the time and
            that given her age, she would have been less able to defend
            herself than a younger person. This factor is consistent with
            predatory behavior; and

           [Moore]’s prior criminal record because when a [d]efendant
            has had four (4) or more sentencing dates, that is
            associated with increased risk; and

           [Moore]’s history of violent behavior, which includes an
            assault charge and Protection From Abuse orders; and

           [Moore]’s history of multiple probation violations pertaining
            to prior DUI’s, which is consistent with antisocial traits; and

           [Moore]’s history of illegal drug usage, which was not
            considered a serious matter in this case; and

           [Moore]’s history of prior psychiatric diagnoses involving
            Bipolar disorder, but there was not enough information to
            really determine its relevance; and

           In regard to behavioral characteristics contributing to the
            individual’s conduct, prior PFA’s and multiple convictions for
            assault crimes indicate a sustained pattern of physical
            violence with at least one of these acts of physical violence
            against the victim in this case.

     Dr. Stein also indicated that not all of these factors are indicative
     of the sexually violent predator, there are no minimum number of
     factors that indicate a sexually violent predator, and the factors
     are not weighted.

     After performing his assessment, Dr. Stein determined that
     Defendant meets the criteria for a sexually violent predator, he

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      explained his reasons for that conclusion, and he indicated that
      this conclusion was rendered to a degree of professional certainty.

Trial Court Opinion, 5/10/2019, at 2-3 (record citations omitted).

      Additionally, it merits mention that when asked why Dr. Stein opined

that Moore met the criteria for an SVP, the expert testified to following:

            While this was a single episode of sexual assault, the victim
      reported that there had been threats in [a] letter that prior
      summer, statements some years prior to the instant offense.

            With the first mention of sexual relationship with his mother,
      especially in the context of prior violence against his mother,
      [Moore] demonstrated deviant interest in [sexually] victimizing
      his mother with the offense this interest was acted upon.

             If he had never acted upon it, he would not meet the criteria
      for paraphilic disorder, but in acting upon it, he does meet the
      criteria because he let these things -- he lost control of these
      thoughts and engaged in the actual sexual assault.

           [There is] sufficient evidence for a paraphilic disorder of
      nonconsent. In other words, sexual interest in a nonconsenting
      sexual interaction.

N.T., 10/2/2018, at 14-15.

      We conclude this evidence was sufficient to support the trial court’s

finding that Moore is an SVP. Accordingly, his final issue does not merit relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 05/19/2020


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