J. S64041/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
DAVID JONATHAN WEAVER,                      :
                                            :
                            Appellant       :     No. 668 MDA 2015

            Appeal from the Judgment of Sentence February 10, 2015
               In the Court of Common Pleas of Lancaster County
               Criminal Division No(s).: CP-36-CR-0000183-2011
                                         CP-36-CR-0000184-2011

BEFORE: FORD ELLIOTT, P.J.E., WECHT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                    FILED NOVEMBER 23, 2015

        Appellant, David Jonathan Weaver, appeals from the judgment of

sentence entered in the Lancaster County Court of Common Pleas.

Appellant challenges the court’s finding that he was a sexually violent

predator (“SVP”). We affirm.1

        We adopt the facts as set forth in the trial court’s opinion. Trial Ct.

Op., 6/1/15, at 1-4.     Following a jury trial, Appellant was found guilty of

indecent assault,2 indecent exposure,3 aggravated indecent assault,4 sexual



*
    Former Justice specially assigned to the Superior Court.
1
  We note “[w]e may affirm the trial court on any ground.”
Commonwealth v. Lynch, 820 A.2d 728, 730 n.3 (Pa. Super. 2003).
2
    18 Pa.C.S. § 3126(a).
J.S64041/15


assault,5 involuntary deviate sexual intercourse,6 rape,7 statutory sexual

assault,8 corruption of minors,9 and unlawful contact with a minor.10   The

court ordered a presentence investigation and a sex offender assessment.

On December 19, 2011, following a SVP hearing, the court found Appellant

to be a SVP and sentenced him to fourteen to thirty years’ imprisonment.

Appellant filed a post sentence motion which was denied.

        Appellant filed an appeal to this Court. Commonwealth v. Weaver,

489 MDA 2012 (unpublished memorandum) (Pa. Super. Dec. 3, 2012). This

Court found no merit to Appellant’s challenge to “the constitutionality of

Megan’s Law, in light of Article III, Section 3’s restriction against the

passage of bills containing more than one subject.” Id. at 20. This Court

relied upon Commonwealth v. Neiman, 5 A.3d 353 (Pa. Super. 2010) (en




3
    18 Pa.C.S. § 3127(a).
4
    18 Pa.C.S. § 3125(a).
5
    18 Pa.C.S. § 3124.1.
6
    18 Pa.C.S. § 3123(a).
7
    18 Pa.C.S. § 3121(a).
8
    18 Pa.C.S. § 3122.1.
9
    18 Pa.C.S. § 6301(a)(1).
10
     18 Pa.C.S. § 6318(a).




                                   -2-
J.S64041/15


banc).11    Id. at 8.   We vacated “the portion of the judgment of sentence

concerning restitution and remanded for resentencing.” Id. at 20.

      Appellant filed a petition for allowance of appeal.    The Pennsylvania

Supreme Court granted the petition for allowance of appeal based upon

Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013).12 Commonwealth

v. Weaver, 96 A.3d 987 (Pa. 2014) (Per Curiam) (Order).         The Supreme

Court vacated our decision in Weaver based upon Neiman, and remanded

for reconsideration.    Id.   Allocatur was denied as to the remaining issues.

Id. On remand, this Court held:

               In light of our Supreme Court’s disposition in Neiman
           striking the entirety of Act 152 as violative of the
           Pennsylvania Constitution, we are constrained to vacate
           Appellant’s judgment of sentence with regard to his
           determination as a sexually violent predator under Megan’s
           Law III, which subjected him to the registration
           requirements pursuant to Megan’s Law III. Hence we
           vacate the judgment of sentence of the trial court entered
           pursuant to Megan’s Law III and remand for resentencing.

Weaver, 489 MDA 2012 (unpublished memorandum at 10) (Pa. Super.

Sept. 23, 2014).



11
  This Court “decline(d) Appellant’s invitation to disregard the holding in
Neiman simply because of its current status as ‘on appeal’ to our Supreme
Court.” Id. at 8.
12
   In Neiman, our Supreme Court held that amendments to Megan’s Law II,
referred to as Megan’s Law III, were unconstitutional because the enacting
legislation was violative of the Single Subject Rule, which required that each
piece of legislation pertain to only one subject. Neiman, 84 A.3d at 605,
607 n.19, 611-12, 616.



                                       -3-
J.S64041/15


     Following a resentencing hearing on February 10, 2015,13 the court

found Appellant to be a SVP and resentenced him to fourteen to thirty years’

imprisonment.     Appellant filed a post sentence motion, which was denied.

This timely appeal followed. Appellant filed a Pa.R.A.P. 1925(b) statement

of errors complained of on appeal and the trial court filed a responsive

opinion.

     Appellant raises the following issue for our review:

           Did not the Commonwealth fail to prove [Appellant’s]
           status as a [SVP] when the evidence failed to establish the
           element of “predatory” behavior under the narrower
           definition of that term appearing in Megan’s Law II in
           contrast to the more expansive definition appearing in
           Megan’s Law III and in the SORNA[14] statute?

Appellant’s Brief at 4 (emphasis added).




13
    The certified record transmitted on appeal did not initially include the
notes of testimony from the February 10th sentencing hearing. Upon
informal inquiry by this court, the trial court provided the transcript. We
remind Counsel that “the ultimate responsibility of ensuring that the
transmitted record is complete rests squarely upon the appellant . . . .”
Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super. 2008) (en banc)
(citation omitted).
14
   We note that Megan’s Law, 42 Pa.C.S.           §§ 9731-9799, expired on
December 20, 2012, and was replaced by the       Sexual Offender Registration
and Notification Act (“SORNA”), 42 Pa.C.S.       §§ 9799.10-9799.41.     The
definition of a SVP under SORNA is the same      as under Megan’s Law. See
note 17 infra.




                                      -4-
J.S64041/15


     Appellant claims that the testimony of Dr. Robert Stein from the first

SVP hearing and sentencing hearing,15 did not establish that Appellant’s

“conduct met the ‘predatory’ element of the SVP definition” in Megan’s

Law II.    Id. at 23 (emphasis added).       Dr. Stein quoted the statutory

definition of predatory as it appeared in Megan’s Law III. Id. Based upon

the definition of predatory in Megan’s Law III, which Appellant contends is

much broader than the definition in Megan’s Law II, Dr. Stein concluded that

Appellant was a SVP. Id. at 23-24. Appellant avers that the definition of

predatory in Megan’s Law II does not apply in the instant case because

Appellant did not establish or promote the relationship with his stepdaughter

“for the primary purpose of victimization, which is the narrower aspect of

the Megan’s Law II ‘predatory’ definition.” Id. at 31. He concludes his SVP

assessment should be reversed. Id.

     Our review is governed by the following principles:

             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.

15
   At the February 10th resentencing hearing, the court accepted the
testimony of Dr. Stein and his written report from the first SVP hearing,
based upon the stipulation of counsel. N.T., 2/10/15, at 5.



                                     -5-
J.S64041/15



           The scope of review is plenary. “[A]n expert’s opinion,
           which is rendered to a reasonable degree of professional
           certainty, is itself evidence.”

              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, whereas a challenge to
           the admissibility of the expert’s opinion and testimony is
           an evidentiary question which, if successful, can lead to a
           new SVP hearing.

Commonwealth v. Prendes, 97 A.3d 337, 355-56 (Pa. Super.) (citations

omitted), appeal denied, 105 A.3d 736 (Pa. 2014).

        The basis for a determination that an individual is a SVP is statutory.

Id. at 357.

           Therefore, the     salient   statutory   inquiry   for   SVP
           designation:

              [I]s identification of the impetus behind the
              commission of the offense; that is, whether it
              proceeds from a mental defect/personality disorder
              or another motivating factor. The answer to that
              question determines, at least theoretically, the
              extent to which the offender is likely to reoffend, and
              [S]ection [9799.24][16] provides the criteria by which
              such likelihood may be gauged.

16
     Section 9799.24 provides in pertinent part:

           An assessment shall include, but not be limited to, an
           examination of the following:

              (1) Facts of the current offense, including:



                                        -6-
J.S64041/15




              (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.

              (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.




                                       -7-
J.S64041/15


        “To deem an individual a sexually violent predator, the
        Commonwealth must first show [the individual] ‘has been
        convicted of a sexually violent offense as set forth in
        [section 9799.14]. . . .’” Commonwealth v. Askew, 907
        A.2d 624, 629 (Pa. Super. 2006)[.] See also 42 Pa.C.S.A.
        § 9799.12. “Secondly, the Commonwealth must show 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 then makes the final
        determination on the defendant’s status as an SVP.

Id. at 357-58 (some citations omitted).

     This Court opined that

        with regard to the various assessment factors listed in
        Section [9799.24], there is no statutory requirement that
        all of them or any particular number of them be present or
        absent in order to support an SVP designation.
        [Commonwealth v.] Meals, [912 A.2d 213,] 220-23
        [(Pa. 2006)]. The factors are not a checklist with each one
        weighing in some necessary fashion for or against SVP
        designation. Id. at 222. Rather, the presence or absence
        of one or more factors might simply suggest the presence
        or absence of one or more particular types of mental
        abnormalities. See id. at 221.

           Thus, while the Board is to examine all the factors listed
        under Section [9799.24], the Commonwealth does not
        have to show that any certain factor is present or absent in
        a particular case. Meals, 912 A.2d at 221. Rather, the
        question for the SVP court is whether the Commonwealth’s
        evidence, including the Board’s assessment, shows that
        the person convicted of a sexually violent offense has a

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

Id. We note these are the same assessment factors as in Megan’s Law II.
See 42 Pa.C.S. § 9795.4.




                                    -8-
J.S64041/15


        mental abnormality or disorder making that person likely
        to engage in predatory sexually violent offenses.     42
        Pa.C.S.A. § 9792.     Having conducted a hearing and
        considered the evidence presented to it, the court then
        decides whether a defendant is to be designated an SVP
        and thus made subject to the registration requirements of
        42 Pa.C.S.A. § 9795.1(b)(3).

Commonwealth v. Feucht, 955 A.2d 377, 381 (Pa. Super. 2008).

        [A] “sexually violent predator” is defined, in pertinent part,
        as “[a] person who has been convicted of a sexually
        violent offense . . . and who is determined to be a sexually
        violent predator under section [9799.24] (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.[17] This definition contains no requirement for
        a determination that the SVP engaged in predatory
        behavior in the instant offense.               The statutory
        definition of “predatory,” about which the arguments
        before us revolve, is relevant only in that an SVP must be
        found to have a mental abnormality or personality disorder
        which renders the SVP likely to engage in predatory
        behavior.      [The a]ppellant does not challenge that
        determination.

Commonwealth v. Fletcher, 947 A.2d 776, 776-77 (Pa. Super. 2008)

(some citations and footnote omitted and some emphasis added) (quoted

with approval in Feucht, 955 A.2d at 381). The Fletcher Court noted that

“42 Pa.C.S.A. § [9799.24(1)] (listing ‘Facts of the current offense’ as a


17
   A SVP under SORNA is also defined as a person “who, on or after the
effective date of this subchapter, is determined to be a sexually violent
predator under section 9799.24 (relating to assessments) due to a mental
abnormality or personality disorder that makes the individual likely to
engage in predatory sexually violent offenses.” 42 Pa.C.S. § 9799.12
(emphasis added).




                                    -9-
J.S64041/15


mandatory area of inquiry in assessment); there is simply not a

requirement that the offense be found to have been ‘predatory.’” Id.

at 777 n.1 (emphasis added).    This Court concluded that “[b]ecause [the

a]ppellant has challenged only one evidentiary insufficiency in his SVP

classification, one which is not a requirement thereof, we find no merit

to his appeal.” Id. at 777 (emphasis added).

     Analogously, in the case sub judice, Appellant has challenged only one

evidentiary insufficiency in his SVP classification, viz., that the evidence

failed to establish the element of predatory behavior. Because there is no

requirement that the offense be found to have been predatory, as focus is

on whether a defendant is likely to engage in predatory behavior in the

future, we find no relief is due. See Feucht, 955 A.2d at 381; Fletcher,

947 A.2d at 776-77.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/23/2015




                                   - 10 -
                                                                                  Circulated 10/30/2015 12:39 PM


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                                             OPINION
 BY: KNISELY, J.                                                                           June 1, 2015

        Defendant David Jonathan Weaver has filed a direct appeal to the Superior Court of

 Pennsylvania from his judgment of sentence imposed on February 10, 2015 and finalized by the

 Court's denial of his post-sentence Motion to Modify Sentence on March 16, 2015. On appeal,

Defendant alleges that there was insufficient evidence to prove Defendant's adjudication as a

sexually violent predator (SVP). This Opinion is written pursuant to Rule 1925(a) of the

Pennsylvania Rules of Appellate Procedure.

                                         BACKGROUND

        The charges in this matter stemmed from nine years of Defendant sexually violating his

minor stepdaughter, K.H. Defendant began his course of inappropriately touching K.H. when

she was nine years old. At that time, Defendant had been married to K.H's mother for one year

and had lived with her for two years. Defendant and nine-year-old K.H. were in Defendant's

truck heading home from the mall when Defendant forced K.H. 's hand down his pants and told

her to rub his penis. Over time, the contacts escalated to vaginal and anal penetration.     The

conduct continued for the following nine years until K.H. left for college.
                                                                                  Circulated 10/30/2015 12:39 PM




         The year prior to K.H. leaving for college, Defendant went on a hunting trip with his

 friend, Tim Heller. Defendant discussed his inappropriate sexual acts on K.H. with Mr. Heller.

 Sometime thereafter, Mr. Heller disclosed this information with a police officer, who was also

 his brother-in-law.   His brother-in-law relayed the information to the Lancaster Bureau of Police

 and an investigation into the matter began.

         In the fall of 2010, K.H. was unaware of the investigation and proceeded to college.

 When she came home for Thanksgiving break, Detective Harnish reached K.H. by phone. She

 agreed to meet him at the police station. During the interview, K.H. discussed what Defendant

did to her, but she did not go into detail. She did not wish to press charges at that time.

Thereafter, K.H. went back to college until Christmas break. When K.H. returned to Lancaster,

she told her mother that Defendant raped her. On December 22, 2010, K.H. returned to the

police station where she spoke to Detective Harnish and Officer Ramos. She provided more

detail than she had during her earlier interview in November.

        As part of her meeting, she consented to conducting wiretap telephone conversations with

Defendant. K.H. made a series of three telephone conversations with Defendant. K.H. explained

that she was in therapy at college and needed help remembering everything that happened to her.

Defendant told K.H. that everything started when she was twelve. He expressed remorse and

contributed his actions to weakness, but did not provide detailed answers to K.H. 's questions.

Rather, he asked her several times to not talk to her mother and to make sure she saw a private

counselor that would keep sessions confidential.




                                                   2
                                                                                       Circulated 10/30/2015 12:39 PM




              On December 22, 2010, Defendant was charged with indecent assault1 (five counts),

     indecent exposure.? aggravated indecent assault,3 rape4 (two counts), statutory sexual assault,"

     involuntary deviate sexual intercourse6 (five counts), sexual assault? (three counts), criminal

    attempt at aggravated indecent assault, 8 corruption of minors,9 and unlawful contact with a

             10
    minor,        all related to incidents with K.H. Defendant proceeded to trial on July 11, 2011. At

    trial, the Commonwealth presented Mr. Heller, who testified about his hunting trip with

    Defendant and the disclosures Defendant made during the trip. Then, K.H. took the stand. She

    recounted numerous sexual assaults and inappropriate actions by Defendant. K.H. was able to

    recall different incidents of sexual contact with specificity. She explained that although many of

    the incidents blended together because of the numerous occurrences, she was able to remember

    certain encounters because they coincided with significant times in her life.

             K.H. also authenticated her taped telephone conversations, which the Commonwealth

then played for the jury. K.H. described a birthmark on Defendant's penis that was not visible

when it was flaccid. Detective Harnish later corroborated K.H. 's description of the birthmark

with photographs obtained pursuant to a warrant. Detective Harnish, the investigating officer in

this matter, was present and in the courtroom during K.H. 's testimony. As a witness, he told the

jury that K.H. 's earlier testimony was consistent with what she told him during their December

2010 meeting at the police station.


       18 Pa.C.S.A. § 3 l26(a).
       18 P.S. § 3 l27(a).
       18 Pa.C.S.A. §3215(a)(7).
4
       18Pa.C.S.A.§3121(a)(I).
5
       18 Pa.C.S.A. §3122.1.
6
       18 Pa.C.S.A. § 3123(a).
7
       18 Pa.C.S.A. § 3124.1.
8
       18 Pa.C.S.A. § 90l(a).
9
       18 P.S. § 6301 (a)(I).
io     18 Pa.C.S.A. § 6318(a)(l).

                                                       3
                                                                                 Circulated 10/30/2015 12:39 PM




        Prior to closing arguments, defense counsel made numerous motions for judgment of

 acquittal. Defense counsel argued, regarding various counts, that the testimony presented lacked

 specificity compared to the allegations in the Information. Three counts were ultimately

 dismissed.   Regarding the criminal attempt at aggravated indecent assault count, the

 Commonwealth asserted that Defendant attempted to insert his fingers into the vagina of K.H. in

 August 2010. Defense counsel argued K.H. 's testimony that described the incident as "same old,

 same old" was insufficient to submit the count to the jury. The Court agreed and this count was

dismissed.

        Regarding two counts of indecent assault by forcible compulsion, defense counsel argued

the elements as alleged were not made out by the evidence presented. The Commonwealth

responded that the Information listed the correct statute and grading, but contained a technical

defect in that the definitions were incorrect. The Commonwealth initially sought to amend the

Information; however, prior to the Court's ruling, the counts were dismissed by agreement of the

parties. The remaining seventeen counts were renumbered, also by agreement of the patties.

        Following deliberations, the jury found Defendant guilty on all but three counts, indecent

assault without consent, indecent sexual assault by forcible compulsion, and rape by forcible

compulsion.   The Court ordered a presentence investigation and a sex offender assessment.

       The Pennsylvania Sexual Offenders Assessment Board ("SOAB") submitted their

opinion that Defendant met the criteria for classification as a sexually violent predator C'SVP")

under Megan's Law. On December 19, 2011, Defendant proceeded to a hearing on his SVP

status and sentencing. During the hearing, ADA Mansfield questioned Dr. Stein, the evaluating

member of the SOAB, as to whether Defendant met the criteria for classification as an SVP.

(N.T. SVP Hearing and Sentencing, 12/19/11, pp. 14-19). Dr. Stein testified that the statute

                                                 4
                                                                                     Circulated 10/30/2015 12:39 PM




 requires two main criteria, mental abnormality and predatory behavior. (Id at 17). Dr. Stein

 testified that there was sufficient evidence to conclude that Defendant suffered from pedophilia

 and paraphilia, which are considered mental abnormalities under the DSM-IV. (Id at 17-18).

 Dr. Stein then testified that "[Pjredatory is defined as an act directed at either a stranger or if the

 person was familiar with whom a relationship has been either initiated or established or

 maintained or promoted for sexual victimizations."      (Id at 18-19). He testified that "[M]any acts

 of sexual misconduct over many years serve to establish and maintain and promote a sexually

 victimizing relationship. Verbal threats and verbal manipulation were used as well to maintain

this relationship. There was sufficient evidence for predatory behavior." (Id. at 19).

        Dr. Stein also discussed the fifteen factors that the statute requires the SOAB to address

before coming to a conclusion. (Id at 14). Dr. Stein testified to the following information

regarding those fifteen factors: (1) there was a single victim; (2) Dr. Stein did not comment on

whether the individual exceeded the means necessary to achieve the offense; (3) the contact

involved sexual touching and penetrative acts of oral, anal, and vaginal intercourse, which was

consistent with deviant sexual interests; (4) the victim was the stepdaughter of the offender; (5)

the victim was age nine to eighteen, meaning the victim was pre-pubescent for at least two years;

(6) there was no indication of unusual cruelty; (7) the victim is a college student and should be

presumed to be of normal mental capacity; (8) there was no relevant criminal history; (9) Dr.

Stein did not comment on whether the individual completed any prior sentences; (10) there was

no prior criminal history of sex offending, so there was no history of sex offender treatment; (11)

over the course of the conduct, the defendant was age twenty-four to thirty-three while the victim

was age nine to eighteen, which is associated with sexual deviance; (12) there was a history of

occasional use of marijuana; (13) there was a history of mild depression; (14) there were no other

                                                   5
                                                                                    Circulated 10/30/2015 12:39 PM




 additional behaviors or characteristics relevant to the report; (15) sustained sexual interest in a

 child is associated with increased risk of reoffending. (Id at 15-17). Dr. Stein also testified that

 while an individual can meet the criteria for SVP status based on one factor alone, it is unlikely;

 for this particular Defendant, the factors that stood out were the nature of the sexual contact and

 the age of the victim. (Id at 21).

         With the benefit of the Board's assessment and a post-sentence investigation, the Court

 deemed Defendant a sexually violent predator and sentenced him to an aggregate term of

fourteen to thirty years of state imprisonment.   On December 29, 2011, Defendant filed a motion

for post-sentence relief which was denied by Order of January 24, 2012. Defendant

subsequently appealed and on September 23, 2014, the Superior Court vacated a portion of the

sentence and remanded the case for re-sentencing.      On February 10, 2015, Defendant appeared

for re-sentencing. The prior testimony of Dr. Stein was incorporated into the proceeding, but the

Commonwealth produced no new evidence. The Court found Defendant to be an SVP and re-

sentenced Defendant to an aggregate sentence of fourteen to thirty years of incarceration.        On

February 19, 2015, Defendant filed a Motion for Post-Sentence Relief, which was denied on

March 16, 2015. The instant appeal followed.

                                           DISCUSSION

        Defendant alleges that the evidence was insufficient to prove Defendant's adjudication as

an SVP because Dr. Stein's testimony pertained to the definition of vpredatory" appearing in

Megan's Law III (Act 152 of2004).      In Com. v. Nieman, 84 A.3d 603 (Pa. 2013), the

Pennsylvania Supreme Court held that Act 152 of 2004, which included Megan's Law III, was

unconstitutional because it violates the "single subject" rule of Article III, Section 3 of the

Pennsylvania Constitution; the Court struck down Act 152 in its entirety. Nieman, 84 A.3d at

                                                  6
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 613, 616. Initially, the Court notes that "Megan's Law II provides that the trial court shall

 'determine whether the Commonwealth has proved by clear and convincing evidence that the

 individual is a]n] [SVP].'" Com. v. Whanger, 30 A.3d 1212, 1215 (Pa. Super. 201 l)(citing Com.

 v. Askew, 907 A.2d 624 (Pa. Super. 2006)).

        The definition for "predatory" under Megan's Law II differs from the definition under

 Megan's Law III. Under Megan's Law II, "predatory" is defined as: "An act directed at a

 stranger or at a person with whom a relationship has been established or promoted for the

 primary purpose of victimization."    (Act of May 10, 2000, P.L. 74, No. 18). Under Megan's

 Law III, "predatory" is defined as: "An 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."   The definition under Megan's Law III is broader than the

definition under Megan's Law II. While Dr. Stein's testimony at the hearing on Febrnary 10,

2015 related to the Megan's Law III definition of"predatory,"     it is still acceptable to prove the

Megan's Law II definition of "predatory."

        Defendant argues that he did not establish or promote a relationship with the victim for

the primary purpose of victimization because they lived in the same household for three years

before the sexual abuse started. The Superior Court of Pennsylvania dealt with a substantially

similar fact pattern in Commonwealth v. Whanger. In Whanger, the defendant began sexually

abusing his adopted daughter when she was nine years old and the abuse continued for

approximately four years and four months. Com. v. Whanger, 30 A.3d 1212, 1216 (Pa. Super.

2011). The defendant argued that the offenses against the victim were opportunistic, not

predatory, because he lived with the victim and served as a father figure. Id. at 1217. Despite

being sentenced under Megan's Law II, the Superior Court defined predatory behavior as "an act

                                                   7
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 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

 The expert testimony, however, pertained to the Megan's Law II definition of predatory. In

 Whanger, the expert testified that "although the relationship was probably not established just to

 exploit the victim, [Appellant] served in a role of adoptive father until he made a conscious

 decision to engage in deviant sexual conduct. The relationship became one of sexual

 exploitation, which continued for more than four years. This supports the factor that [Appellant]

 in fact looked at and utilized the relationship with his adoptive daughter in an exploitive

manner." Jd.(internal citations omitted). The Superior Court found that the defendant's "claim

that the prolonged period of abuse was opportunistic, not predatory, is unfounded based on the

expert findings of [the expert's] testimony and assessment ... " Id.

        In the instant case, the Court deals with a substantially similar situation. Defendant is the

victim's stepfather. After Defendant had been married to K.H's mother for one year and had

lived with her for two years, he began sexually abusing K.H. when she was nine years old.

While he perhaps did not establish a relationship with K.H. for the sole purpose of victimization,

Defendant, like the defendant in Whanger, made a conscious decision to engage in deviant

sexual conduct. That sexual abuse continued for nine years from the time K.H. was nine until

she was eighteen and left for college. Dr. Stein testified as to each of the fifteen factors to be

considered in determining whether an offender is an SVP. Defendant committed many acts of

sexual misconduct over a prolonged period of time. Those acts served to establish and promote a

sexually victimizing relationship. Dr. Stein testified that verbal threats and verbal manipulation

were used as well to maintain the relationship. Based on the evidence presented at the SVP

hearing, including the fact that Defendant sexually abused his step-daughter for nine years,

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starting at age 9 and including sexual touching and penetrative acts of oral, anal, and vaginal

intercourse, the Court found by clear and convincing evidence that Defendant was a sexually

violent predator.

          Accordingly, the Court respectfully submits that Defendant's judgment of sentence and

status as an SVP should be affirmed and his appeal dismissed.




                                                      BY THE COURT:




                                                      I~
                                                      JUDGE

Attest:

Copies to:
       James J. Karl, Chief Public Defender
       James M. Reeder, Assistant District Attorney




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