J-S94044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

SAMUEL F. RASHID

                             Appellant                 No. 691 MDA 2016


             Appeal from the Judgment of Sentence March 31, 2016
       in the Court of Common Pleas of Lebanon County Criminal Division
                                  at No(s):
                           CP-38-CR-0000378-2014
                           CP-38-CR-0001202-2013
                           CP-38-CR-0001205-2013
                           CP-38-CR-0001210-2013


BEFORE: LAZARUS, RANSOM, AND FITZGERALD, * JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED JANUARY 27, 2017

        Appellant, Samuel Rashid, appeals from the judgment of sentence

entered in the Court of Common Pleas of Lebanon County. Appellant claims

that the court erred in declaring him a sexually violent predator (“SVP”)

because there is insufficient evidence that he is likely to re-offend.    We

affirm.

        Appellant was a physician who was formerly in practice at Lebanon

Valley Family Medicine. Over a thirteen year period, Appellant engaged in a

pattern of inappropriate behavior with female patients. His victims reported

that he would fondle their breasts while listening to their heart or perform

*
    Former Justice specially assigned to the Superior Court.
J-S94044-16


unnecessary pelvic examinations, even when treating them for common

colds.

         On October 30, 2015, Appellant pleaded no contest to committing the

following sexual offenses against four female patients: indecent assault in

Nos. 1202-2013, 1205-2013, and 1210-2013,1 and corruption of minors and

indecent assault2 in No. 378-2014. N.T., Sentencing Hr’g, 3/31/16, at 128-

29. The victim in No. 378-2014 was a minor at the time of the offenses. As

part of Appellant’s plea agreement, the Commonwealth nolle prossed a

charge of aggravating indecent assault in No. 378-2014.      Id. at 129-30.

The court sentenced Appellant to an aggregate term of imprisonment of 6

months to 2 years less one day and a consecutive term of five years’

probation. Id. at 132.

         On the date of sentencing, the court held a hearing to determine

whether Appellant was an SVP. The Commonwealth offered the report and

testimony of Dr. Robert Stein, a member of the Sexual Offenders

Assessment Board.       N.T. at 7.   Dr. Stein performed his assessment by

reviewing reports from board investigators, the court’s assessment order,

defense counsel’s response, the criminal complaint and affidavit of probable

cause, police reports and the transcript of the preliminary hearing.   Id. at

1
 18 Pa.C.S. § 3126(a)(1) in Nos. 1202-2013 and 1205-2013 and 18 Pa.C.S.
§ 3126(a)(8) in No. 1210-2013.
2
 Counts 1 through 3, 18 Pa.C.S. §3125(a)(1), 18 Pa.C.S. §6301(a), and 18
Pa.C.S. §3126(a)(1), respectively.



                                     -2-
J-S94044-16


10. Dr. Stein did not interview Appellant, who declined to participate in the

assessment process. Id.

     Although twenty-eight other possible victims lodged complaints, Dr.

Stein limited his review to the four victims involved in these cases. N.T. at

11, 19, 35-36. Dr. Stein applied the statutory criteria within 42 Pa.C.S. §

9799.24 to evaluate whether Appellant suffered from a mental abnormality

and was likely to commit predatory sexually violent crimes. Id. at 10-11.

     Dr. Stein found a number of relevant factors.        Appellant’s offenses

against multiple victims indicated greater practice in offending and greater

risk-taking than an assault on one victim.      N.T. at 11.    All four cases

involved nonconsenting sexual behavior—inappropriate sexual touching by a

medical   doctor   during   a   medical   examination—a   relevant   factor   in

determining mental abnormality. Id. at 12. All victims were unrelated to

Appellant, a sign of predatory behavior. Id. at 12-13. Appellant’s assaults

on the victims took place over the “lengthy period” of thirteen years. Id. at

13, 15.   Although the victims were of normal mental capacity, one used

Suboxone, which made her unusually vulnerable because Appellant was the

only active prescriber of Suboxone in the area. Id. at 12. Another victim

was unusually vulnerable because she was only thirteen at the time of the

offenses, while Appellant was forty-five years old. Id. at 12-13.

     To determine whether Appellant had a disorder, Dr. Stein took into

account the actual behaviors, the duration of time over which they occurred,



                                     -3-
J-S94044-16


the relationship between the offender and the victims and the factors

enumerated in the SVP statute. N.T. at 17. In addition, Dr. Stein consulted

the Diagnostic and Statistical Manual of Mental Disorders (“DSM-V”), a

widely accepted tool in the mental health profession. Id. at 14-15. Based

on his review, Dr. Stein opined, within a reasonable degree of medical

certainty, that Appellant suffers from a psychiatric disorder that Dr. Stein

labeled “other specified paraphilic disorder: non-consent.” Id. at 14, 18. A

paraphilic disorder is an incurable lifetime condition. Id. at 17.       The DSM-V

lists eight types of paraphilic disorders but not “other paraphilic disorder”.

Id. at 16. Nevertheless, the DSM-V permits the clinician to diagnose “other

paraphilic disorder” if he “specifies what that means.” Id. Dr. Stein defined

Appellant’s “other paraphilic disorder” as “a pattern of non-consenting sexual

behavior which took place over a period of six months or more.” Id. at 14.

      Dr. Stein concluded that Appellant exhibited a “likelihood” or “risk” of

re-offending over the course of his lifetime, because he has engaged in this

behavior for six months or more. N.T. at 18, 20. According to the doctor,

Appellant   presents   a   risk   of   re-offending,   for   despite   forfeiting   his

Pennsylvania license, he could seek licensure in another state or country and

resume his predatory conduct or function as a non-licensed consultant to

gain access to new victims. Id. at 30-31, 38.

      Dr. Stein also opined, within a reasonable degree of medical certainty,

that Appellant engaged in “predatory behavior”, which he defined as “a



                                        -4-
J-S94044-16


relationship that is either established, maintained or promoted in order to

facilitate victimization.”   N.T. at 21.   Appellant’s acts of “sexual touching”

were not physically violent, “but they violated each of these patients

sexually.” Id.

      Appellant called Dr. Timothy Foley, a licensed psychologist, as an

expert witness. Dr. Foley agreed with Dr. Stein that Appellant had engaged

in predatory behavior, but he disagreed with Dr. Stein’s diagnosis of “other

specified paraphilic disorder.” Dr. Foley opined that Appellant suffered from

frotteuristic disorder, which the DSM-V defines as “inappropriate and

nonconsenting touching of another individual.” N.T. at 48-49. Dr. Foley also

disputed Dr. Stein’s conclusion that Appellant was likely to re-offend,

because Appellant was over sixty years old, when “sexual[] recidivism

declines precipitously across the board,” and no longer had access to female

patients after surrendering his medical license. Id. at 50-52.

      Dr. Stein disputes Dr. Foley’s diagnosis of frotteuristic disorder.    Dr.

Stein asserted that frotteuristic disorder involves a “pattern of behavior in

crowded buses or subways” in which individuals “rub themselves to

ejaculation” on other persons. N.T. at 34-35. Appellant, Dr. Stein stated,

did not engage in this behavior. Id. at 35.

      During sentencing on March 31, 2016, the court entered an order

declaring Appellant a SVP. On Monday, April 11, 2016, Appellant filed timely




                                       -5-
J-S94044-16


post-sentence motions.3       On April 28, 2016, while post-sentence motions

remained pending, Appellant filed a notice of appeal.     On May 19, 2016,

Appellant withdrew his post-sentence motions, and the court docketed an

order memorializing the withdrawal pursuant to Pa.R.Crim.P. 720(A)(2)(c).

      Appellant raises one issue in this appeal:

      Whether the Commonwealth failed to present sufficient evidence
      to sustain its burden of proof by clear and convincing evidence
      that Appellant was a sexually violent predator, as defined in 42
      Pa.C.S.[] § 9799.12, where it was not proven that Appellant was
      likely to reoffend because he permanently surrendered his
      medical license and each of the allegations were limited to
      occurring within Appellant’s medical practice, among other
      things?

Brief For Appellant, at 13.

      Preliminarily, we note that Appellant’s appeal was premature. When,

as here, the defendant files timely post-sentence motions, his judgment of

sentence does not become final and appealable until the court decides the

motions.   Commonwealth v. Borerro, 692 A.2d 158, 159 (Pa. Super.

1997). When the defendant withdraws timely filed post-sentence motions,

and the trial court enters an order memorializing the withdrawal, the

defendant may appeal within thirty days of the order. Id.         This case

presents a slightly different scenario: Appellant filed timely post-sentence

3
  The deadline for filing post-sentence motions was the tenth day after
sentencing, April 10, 2016. See Pa.R.Crim.P. 720(A)(1). Because this date
fell on Sunday, Appellant timely filed his post-sentence motion on Monday,
April 11, 2016. 1 Pa.C.S. § 1908 (when last day of any period of time
referred to in any statute falls on Saturday, Sunday, or legal holiday, such
day shall be omitted from computation).



                                      -6-
J-S94044-16


motions, then appealed prematurely (before the trial court decided

the motions), and then withdrew his motions three weeks after appealing.

The trial court then docketed an order memorializing the withdrawal of

Appellant’s motions. In this circumstance, we regard this appeal as having

been timely filed on the date of entry of the memorialization order.    See

Pa.R.A.P. 905(a)(5) (“a notice of appeal filed after the announcement of a

determination but before the entry of an appealable order shall be treated as

filed after such entry and on the day thereof”); Commonwealth v. Claffey,

80 A.3d 780, 783 (Pa. Super. 2013) (finding appeal timely under identical

circumstances).

     Appellant does not contest that he suffers from a sexual abnormality

and has engaged in predatory behavior.       He insists, however, that the

Commonwealth failed to prove that he is likely to re-offend, because (1) he

only committed sexual offenses within the context of his medical practice,

and (2) he can no longer commit such offenses because he has surrendered

his medical license. We disagree.

     We apply the following standard of review:

        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



                                    -7-
J-S94044-16


              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.’

           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 a SVP designation

              is 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][4] provides the criteria by which
              such likelihood may be gauged.

4
    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:




                                       -8-
J-S94044-16



              (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.

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



                                       -9-
J-S94044-16


         ‘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).

      Viewed in the light most favorable to the Commonwealth, the record

provides clear and convincing evidence that Appellant is a SVP.                In

particular, the record demonstrates that Appellant was likely to re-offend—or

in the words of section 9799.12, “likely to engage in predatory sexual

offenses”—by committing additional predatory sexually violent offenses.

      Dr. Stein’s testimony establishes that Appellant suffers from a mental

abnormality, other specified paraphilic disorder, that overrides his emotional

and volitional control and has caused him to engage in predatory sexual

assaults against female patients for thirteen years.          This is a lifetime

condition for which there is no cure.     Although Appellant has forfeited his

Pennsylvania license, he is still free to seek licensure in other jurisdictions or

work as a non-licensed medical consultant. In either circumstance, his past




42 Pa.C.S. § 9799.24(b).




                                     - 10 -
J-S94044-16


history and his mental abnormality make it likely that he will again engage

in predatory sexually violent offenses.

      In effect, Appellant asks us to credit Dr. Foley’s testimony over Dr.

Stein’s testimony, thereby viewing the evidence in the light most favorable

to him instead of the Commonwealth. We cannot take this step. The trial

court ruled in favor of the Commonwealth by accepting Dr. Stein’s opinion

instead of Dr. Foley’s,5 and we are required to construe the evidence in the

light most favorable to the Commonwealth.

      For these reasons, we hold that the Commonwealth fulfilled its burden

of proving that Appellant is likely to engage in predatory sexual behavior in

the future.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/27/2017




5
  Moreover, the trial court had ample basis to reject Dr. Foley’s opinion of
frotteuristic disorder. Dr. Stein observed that individuals with this disorder
usually rub their bodies against strangers in public places such as planes,
trains and elevators. In this case, Appellant was not a stranger to his
patients, and he assaulted them in private examination rooms. Instead of
rubbing his body against his patients, Appellant fondled their intimate zones
with his hands. N.T. at 34-35.



                                    - 11 -
