J. S67035/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA, :             IN THE SUPERIOR COURT OF
                              :                PENNSYLVANIA
                  Appellee    :
                              :
       v.                     :
                              :
DAVID GORDON OSTER,           :
                              :
                  Appellant   :             No. 784 WDA 2014


                      Appeal from the Order April 30, 2014
                  In the Court of Common Pleas of Erie County
               Criminal Division No(s).: CP-25-CR-0002039-2013

BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 18, 2014

        Appellant, David Gordon Oster, appeals from the order entered in the

Erie County Court of Common Pleas classifying him as a Sexually Violent

Predator (“SVP”),1 following his no contest plea to indecent assault,2

endangering the welfare of children,3 and corruption of minors.4         He




*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. § 9799.12.
2
    18 Pa.C.S. § 3126(a)(7).
3
    18 Pa.C.S. § 4304.
4
    18 Pa.C.S. § 6301.
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challenges the sufficiency of the evidence to support his designation as a

SVP. We affirm.5

        We state the procedural history and facts as set forth by the trial

court:

              On January 2, 2014, Appellant appeared before this
           Court and pled no contest to one count each of indecent
           assault, endangering welfare of children, and corruption of
           minors. In exchange, the Commonwealth nolle prossed
           the charge of aggravated indecent assault of a child, a
           felony of the first degree. Following the plea, this Court
           ordered a [SVP] assessment pursuant to Pennsylvania’s
           version of “Megan’s Law”, the Sex Offender Registration
           and Notification Act, 42 Pa.C.S.A. § 9799.10 et. seq.
           (“SORNA”).[6]

              Appellant’s SVP hearing was held on April 30, 2014. At
           that time, Brenda A. Manno,[7] a licensed clinical social
           worker and board member of the Pennsylvania Sexual
           Offender Assessment Board, testified to a reasonable


5
    The Commonwealth did not file a brief in the instant case.
6
 This Court in Commonwealth v. Prendes, 97 A.3d 337 (Pa. Super. 2014)
noted:

           Megan’s Law provisions . . . expired on December 20,
           2012.    See 42 Pa.C.S.A. §§ 9791-9799.9.      [SORNA]
           became effective in its place.      See 42 Pa.C.S.A. §§
           9799.10-9799.41. . . .      While the statutory section
           numbers changed the enactment of SORNA, the standards
           governing the expert witness assessment for the SVP
           hearing remained substantially the same.

Id. at 346 n.3.
7
  At the SVP hearing, the parties stipulated Ms. Manno was “an expert in the
field of behavior assessment & treatment of sexually violent offenders.” N.T.
SVP Hr’g, 4/30/14, at 7.



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        degree of professional certainty that Appellant met
        the statutory criteria for classification as a [SVP].

Trial Ct. Op., 6/18/14 at 1 (citations omitted) (emphasis added).

     Ms. Manno testified, inter alia, as follows:

           We look at the facts of the current offense, whether or
        not there were multiple victims, and in this case there was
        only one. We review whether or not he exceeded the
        means necessary to achieve the offense, and I did not find
        that present I this case. The nature of the sexual contact
        with the child involved fondling her vaginal area on
        numerous occasions. The relationship of the offender to
        the victim. [Appellant] was her uncle. The child would
        have been between three to eight years of age during the
        time of the offenses.

           I did not find a display of unusual cruelty in this case.
        Records did not indicate the victim had any additional
        mental vulnerability, however[,] I found that she was
        vulnerable and her mental capacity limited due to the
        young age at the time of the offences occurred.

           We also look at prior criminal record. [Appellant] was
        charged as a juvenile for fire setting but those charges
        were dismissed, so he has no prior record, therefore he
        has never completed any prior sentences and he has not
        participated in sex offender specific treatment.

           I reviewed his characteristics at the time of the offense.
        He would have been approximately 18 to 24 years of age.
        He does have a history of illegal drug use. . . . He admits
        the history of cocaine use and marijuana use, some
        inhalants and prescription medication abuse as well.

           We look at the history of past mental illness, mental
        disability or mental abnormality. He does have a history of
        past diagnosis and treatment. He reported a diagnosis of
        treatment for Attention Deficit Hyperactivity Disorder as
        well as for issues of depression.

           The other factors that I considered was just the
        expanse of time that the offences occurred, the age of the


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        victim, which was young, three to eight years old, and the
        fact that [Appellant] was an adult and would have been 18
        to 24 years old at the time of the offense.

N.T. at 9-10.

     Following review of all the information at her disposal, Ms. Manno

diagnosed Appellant with “Pedophilic Disorder:”

        I found he met the diagnostic criteria for Pedophilic
        Disorder as defined in the DSM-5.[8] That indicates that
        there’s a period of at least six months where there’s
        recurrent, intense sexually arousing fantasies, urges or
        behaviors involving sexual activity with a prepubescent
        child, which they generally note is under 13 years of age,
        and that the person has acted on these urges, or the urges
        or fantasies cause marked distress or interpersonal
        difficulty. We have an individual who is at least 16 years
        of age and five or more years older than the child or
        children. We clearly have those diagnostic criteria met in
        this case.

Id. at 11 (emphasis added).     She further testified that pedophilia is a

lifetime disorder and makes Appellant likely to reoffend in a sexual

manner. Id. at 11-12 (emphasis added).

     Ms. Manno said Appellant’s behavior was predatory in nature:

               The definition of predatory states an act
        directed at a stranger or at a person with whom a
        relationship is initiated, established, maintained or
        promoted, in whole or in part, in order to facilitate or
        support victimization. I find that [Appellant] maintained
        or promoted that relationship and used his role as the
        child’s uncle and his access that he had to her to sexually
        offend upon her on numerous occasions over a period of
        years.

8
  The court defined “DSM5” as the Diagnostic and Statistical Manual, Fifth
Edition. N.T. at 25.



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Id. at 12 (emphasis added).

      Following the hearing, the trial court found that Appellant was an SVP.

“Appellant was sentenced as follows: 9 to 24 months’ incarceration at Count

2   (indecent   assault);   12   to   24   months’   incarceration   at   Count   3

(endangering welfare of child), consecutive to Count 2; and, 12 to 40

months’ incarceration at Count 4 (corruption of minors), consecutive to

Count 3.” Trial Ct. Op. at 2.

      This timely appeal followed. Appellant filed a court-ordered 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:

         Whether the trial court abused its discretion when it found
         Appellant to be a sexually violent predator as there was
         insufficient evidence to support such a finding.

Appellant’s Brief at 3.9

      Appellant avers “the court failed to adequately consider [his] young

age, his significant drug and alcohol abuse, the fact that there was no

evidence that he exceeded the means necessary in committing the offenses

and that he did not display cruelty to his victim.”       Id.   Appellant further

claims the “expert witness testimony did not indicate that [he] exhibited

9
  Appellant did not file post-trial motions. However, a challenge to the
sufficiency of the evidence supporting an SVP determination can be made for
the first time on appeal. See Pa.R.Crim.P. 606(A)(7); Commonwealth v.
Fuentes, 991 A.2d 935, 941 n.4 (Pa. Super. 2010).



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any prior mental health problems or deviant sexual behavior.” Id. at 9. He

also argues the evidence was insufficient to find his behavior predatory in

nature. We find no relief is due.

      The standard of review of a challenge to the sufficiency of the evidence

for a determination of SVP status is de novo, as it is a question of law.

Commonwealth v. Sanford, 863 A.2d 428, 431 (Pa. 2004). The scope of

review of a challenge of the sufficiency of the evidence 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.

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

Prendes, 97 A.3d at 355-56 (citations and quotation marks omitted).

      The factors which an expert considers when making an SVP analysis

are dictated by Section 9799.24(b) of SORNA:

         § 9799.24. Assessments

            (b) Assessment.—Upon receipt from the court of an
         order for an assessment, a member 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



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       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
          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.



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

42 Pa.C.S. § 9799.24.

      Furthermore,

            “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]. . . .’” “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.’” . . .

                               *    *       *

            “With regard to the various assessment factors . . . ,
         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.         The factors are not a
         checklist with each one weighing in some necessary
         fashion for or against SVP designation.”        “Thus, ‘[t]he
         Commonwealth does not have to show that any certain
         factor is present or absent in a particular case.’” . . .

Prendes, 97 A.3d at 357-59 (citations omitted).

      “A mental abnormality” is defined by statute as follows:

         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
         menace to the health and safety of other persons.

42 Pa.C.S. § 9799.12.      “Predatory” is defined as “[a]n act directed at a

stranger or at a person which whom a relationship has been initiated,

established, maintained or promoted, in whole or in part, in order to

facilitate or support victimization.” Id.


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     In Prendes, this Court affirmed a finding that the defendant was a

SVP where he (1) “suffer[ed] from the ‘mental abnormality’ of pedophilia,”

(2) “abused a young child over a period of several years, which

demonstrates that he is likely to reoffend[,]” and (3) “exploited a family

relationship to have the child repeatedly placed in his care, which is

‘predatory’ behavior.” Prendes, 97 A.3d at 361.

     In the case sub judice, the trial court opined:

            At the SVP hearing, Ms. Manno explained that she
        reviewed the following: (1) records and a report prepared
        by Nicole Bahr (another member of the Board), including
        historical information provided by Appellant; (2) Child Line
        records; (3) the police criminal complaint, affidavit of
        probable cause, and other information regarding the
        offenses; (4) records from the Pennsylvania Department of
        Transportation; (5) Erie County Juvenile Probation records;
        (6) Erie County Adult Probation records; (7) Pennsylvania
        Child Support Program records; and (8) nonparticipation
        letter from defense counsel. She explained the relevant
        statutory criteria that she considered and rendered
        her opinion that Appellant met the diagnostic criteria
        for Pedophilic Disorder as defined in the DSM-5.
        Based on that diagnosis, she opined that Appellant
        suffers from a mental abnormality or personality
        disorder that would make him likely to reoffend in a
        sexual manner.

           Ms. Manno concluded his behavior was predatory
        as defined under the statute. She found that Appellant
        maintained or promoted his relationship as the victim’s
        uncle to have access to, and sexually offend her, on
        numerous occasions of a period of years.       On cross-
        examination, Ms. Manno further delineated the reasons for
        her conclusion.

           I’m not indicating there was an initiation or
           establishment. That was done through birth as she
           was his niece. . . . In the police report the child


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             reports ongoing incidents of abuse that included
             [the] skin to skin contact when the two were left
             alone.   So the fact that we have a duration of
             approximately somewhere around five years of
             incidents that occurred as soon as the opportunity
             arose when he had access to the victim without
             others present, I find that i[n] maintaining or
             promoting that relationship out of the uncle/niece
             realm into the sexual realm, at least in part on an
             ongoing basis.

            In making [its] determination, this [c]ourt credited Ms.
         Manno’s testimony and her report. It also considered the
         record, all of the relevant statutory provisions, and made
         detailed findings. It agreed with her assessment and
         concluded that:

             . . . I think what is at issue here is the exploitation
             of the relationship that he had with the child.
             The living together, the family relationship, the fact
             that we have multiple events while he had his close
             relationship with the child and her vulnerability
             indicates to the Court there was an exploitation of
             this relationship which brings this into the definition
             of potential - - I should say predatory, not potential
             but predator behavior. . .

                                   *     *      *

             . . . As reflected by the record, the Commonwealth
             presented clear and convincing evidence sufficient to
             establish that Appellant was a [SVP].

Trial Ct. Op. at 5-7. We agree no relief is due.

      Instantly, we agree with the trial court that the evidence was sufficient

to classify Appellant as a SVP. He suffered from pedophilia, abused a young

child over a period of several years, and exploited a family member

exhibiting predatory behavior. See Prendes, 97 A.3d at 361. Accordingly,

we affirm.


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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/18/2014




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