Com. v. Blakeney, M.

Opinion

J-S18009-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

MARK ALLEN BLAKENEY :

:

Appellant : No. 1287 WDA 2024

Appeal from the Judgment of Sentence Entered October 11, 2024 In the Court of Common Pleas of Venango County Criminal Division at No(s): CP-61-CR-0000596-2023

BEFORE: DUBOW, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.: FILED: June 25, 2025

Appellant, Mark Allen Blakeney, appeals from the judgment of sentence

entered October 11, 2024, in the Court of Common Pleas of Venango County

following his nolo contendere plea to one count of Statutory Sexual Assault—

11 Years Older.1 Appellant challenges the sufficiency of the evidence

supporting the court’s finding that he is a Sexually Violent Predator (“SVP”).2

Following careful review, we affirm.

We glean the relevant factual and procedural history from the trial

court’s opinion. On December 12, 2023, the Commonwealth charged

Appellant with 3 counts of criminal conduct, later amended to 8 counts,

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 3122.1(b).

2 Pursuant to 42 Pa.C.S. §§ 9799.12 and 9799.24.

J-S18009-25

relating to the sexual abuse of Victim, a minor who was Appellant’s American

Sign Language (“ASL”) student. On May 28, 2024, Appellant entered a nolo

contendere plea to Statutory Sexual Assault—11 Years Older. The court nolle

prossed the remaining 7 counts.

On October 10, 2024, the Court held a hearing to determine whether

Appellant was an SVP. The Court reviewed a report by William Allenbaugh, a

member of the Sexual Offender Assessment Board (“SOAB”), and heard Mr.

Allenbaugh’s testimony at the hearing.

Mr. Allenbaugh has been a member of SOAB for 29 years and was

qualified as an expert in the assessment and treatment of sexual offenders.

He testified that Appellant “engaged in grooming conduct towards [Victim]”

over three years, and that his conduct was “deliberate and progressive”

because he “overtime increased the nature of his sexual offenses[.]” Trial Ct.

Op., 11/27/24, at 7. He explained that, at the time of the offenses, Appellant

was between the ages of 50 and 53 years old, and Victim was between the

ages of 12 and 15 years old. He also testified that Victim did not suffer from

any mental incapacity but was “especially vulnerable due to her young age,

disability, and relationship to” Appellant, her ASL teacher who had lived with

her family for 6 months. Id. at 7-8. Mr. Allenbaugh explained that Appellant

“utilized his position of trust as an interpreter to gain access to [Victim,]”

which was “heightened by the fact that [he] took residency in [Victim’s] home

where he could readily sexually abuse [Victim].” Id. at 9.

3

J-S18009-25

Mr. Allenbaugh further testified that Appellant did not “display any

unusual cruelty[,]” use any illegal substances, or “exceed the means

necessary to achieve the offense,” but that he threatened to kill Victim if she

told anyone. Id. at 7-8. He explained that Appellant’s behavior “is consistent

with a paraphilic disorder in the DSM [Diagnostic and Statistical Manual]-V-

TR[,]” specifically to non-consenting minors, which is a lifetime disorder. Id.

at 9; N.T. Hr’g, 10/10/24, at 21-22.

He also noted that Appellant’s only prior conviction was in 2003 in Texas

for Failure to Report Child Abuse, for which he completed his probation term,

and that he has never participated in a program for sexual offenders.

Ultimately, he concluded that Appellant is likely to reoffend and determined,

with a reasonable degree of professional certainty, that Appellant is an SVP.

N.T. Hr’g at 22-23. Following the hearing, the court concluded that Appellant

is an SVP.

On October 18, 2024, the Court issued an order classifying Appellant as

a Tier III sexual offender pursuant to the Sexual Offender Registration and

Notification Act (“SORNA”).3 The same day, the court sentenced him to a term

of 2 to 10 years of incarceration, followed by 10 years of probation, with credit

for time served. Appellant did not file any post-sentence motions.

This timely appeal followed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

____________________________________________

3 42 Pa.C.S. § 9799.11-9799.42.

4

J-S18009-25

Appellant raises one issue for our review:

Did the court err in finding that the evidence presented was sufficiently clear and convincing to support that [ A]ppellant is a[n] [SVP]?

Appellant’s Br. at 2.

We review a claim that the evidence was insufficient to designate a

defendant as an SVP under the following standard:

A challenge to the sufficiency of the evidence is a question of law requiring a plenary scope of review. The appropriate standard of review regarding the sufficiency of the evidence is whether the evidence admitted at trial and all reasonable inferences drawn therefrom, when viewed in the light most favorable to the Commonwealth as the verdict winner, is sufficient to support all the elements of the offenses. As a reviewing court, we may not weigh the evidence and substitute our judgment for that of the fact-finder. Furthermore, a fact-finder is free to believe all, part or none of the evidence presented.

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

Commonwealth v. Haughwout, 837 A.2d 480, 484 (Pa. Super. 2003)

(citations and quotation marks omitted).

The SOAB member assessing the defendant is not limited to considering

the facts contained in plea colloquy—he may “review and consider the

information contained in records provided by state, county and local agencies,

offices and entities in this Commonwealth when making an SVP assessment

5

J-S18009-25

and preparing a statutorily compliant written report.” Commonwealth v.

Aumick, 297 A.3d 770, 782 (Pa. Super. 2023). As our Supreme Court has

made clear, this Court is limited to “simply assessing the legal sufficiency” of

the evidence presented; we may neither reweigh the evidence nor require

greater proof than is required by the statute. Commonwealth v. Meals, 912

A.2d 213, 214 (Pa. 2005). In assessing the legal sufficiency, this Court must

consider the “expert opinion that, to a reasonable degree of professional

certainty,” Appellant has a paraphilic disorder. Id. at 223. Our role as an

appellate court does not permit us to re-evaluate, on appeal, the merits of

that diagnosis. Id. The diagnosis itself is evidence, and any attack on the

underlying merits of the opinion goes to “the weight, and not the sufficiency,

of the expert’s evidence.” Id. at 224.

In the instant case, Judge Kirtland has authored a comprehensive,

thorough, and well-reasoned opinion, citing to the record and relevant case

law, and discussing each of the factors considered in an SVP determination,

in order to conclude that Appellant is an SVP. After a careful review of

Appellant’s argument and the record, we affirm the trial court’s determination

that Appellant is an SVP on the basis of that Opinion. See Trial Court Op. at

7-10. The parties are instructed to append a copy of the trial court’s

November 27, 2024 opinion to all future filings.

Judgment of sentence affirmed.

6

J-S18009-25

DATE: 6/25/2025

Circulated 05/30/2025 Circulated 05/30/2025 09:24 09:24 AM

AM

IN THE COURT OF COMMON PLEAS OF VENANGO COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA PENNSYLVANIA;

CR. No. 596-2023

v.. v. ..

MARK BLAKE NEY, BLAKENEY, -

«.,

Defendant

1925(b) OPINION

AND NOW, this 27th day of ofNovember

November 2024, this

this Court

Court enters

enters its

its opinion

opinion pursuant

pursuant to

to

Pa.R.A.P. 1925 in response response to

to the Defendant's Notice of of Appeal,

Appeal, filed

filed November

November 12,

12, 2024.

2024. The

The

Defendant Defendant appeals appeals from

from an

an order

order filed

filed on

on October

October 11,

11, 2024,

2024, classifying

classifying the

the Defendant

Defendant as

as a

a

sexually sexually violent violent predator predator in

in accordance

accordance with

with 42

42 Pa. C.S.A. §$ 9799.12

Pa.C.S.A. 9799.12 and and 42

42 Pa. C.S.A. §$

Pa. C.S.A.

9799.24. 9799.24.

L I. Procedural Pracedural History

History

On December 12, On December 12, 2023, 2023, the

the Defendant was charged Defendant was charged by Formal Information by Formal with three Information with (3)

three (3)

counts counts of ofcriminal criminal conduct.

conduct. Venango

Venango County

County District

District Attorney

Attorney filed

filed an

an amended

amended Formal

Formal

Information Information on on February

February 27,

27, 2024

2024 alleging

alleging eight

eight(8)

(8) counts

counts of

ofcriminal

criminal conduct.

conduct. On

On May

May 28,

28,

2024, 2024, the the Defendant Defendant entered

entered a

a nolo

nolo contendere

contendere plea

plea to

to Count

Count 1-

1- Statutory

Statutory Sexual

Sexual Assault:

Assault: 1

11I

Years Years Older, Older, a a Felony

Felony 1.1. in

in violation

violation of

of 18

18 PA. C.S.A.

Pa. C $ 3122.1(b).

S.A. § . The remaining 3122.1b). The seven ( remaining seven (7)

7)

counts counts were were nolle nollepressed.

prossed.

Following Following a a hearing

hearing held

held on

on October

October 10,

10, 2024,

2024, the

the Court

Court issued

issued an

an order

order finding

finding the

the

Defendant Defendant to to be

be a

a sexually

sexually violent

violentpredator

predator("SVP")

("SVP") pursuant

pursuantto

to 42

42 Pa. C.S.A. §$ 9799.12

Pa. C.S.A. 9799.12 and and 42

42

Pa. Pa. C.S.A.

C.S.A. §$ 9799.24.

9799.24. In

In determining

determining whether

whether the

the Defendant

Defendantwas

was SVP,

SVP, the

the Court

Court reviewed

reviewed a

a

report report and andtestimony testimony from

from William

WilliamAllenbaugh

Allenbaugh11,

II, a member of

amember ofthe

the Sexual

Sexual Offender

OffenderAssessment

Assessment

Board Board("SOAB"), ("SOAB), in in determining

determiningthe

theDefendant

Defendantto be a

tobe aSVP.

SVP.

22

On October 18, 2024, the Court issued an Order classifying the Defendant under the

Sexual Offender Registration and Notification Act Act ("SORNX

("SORNA")which

which notifies the Defendant of

the registration requirements he must follow as a C.S.A. §$ a Tier III sexual offender under 42 Pa. C.S.A.

9791 et 9791 et seq.

seq. Also Also on

on October

October 18,

18, 2024,

2024, the

the Court

Court entered

entered a

a sentence that Defendant sentence that Defendant is is to

to serve

serve a

a

term of term of imprisonment imprisonment for for a

a minimum

minimum of

oftwenty-four

twenty-four (24)

(24) months

months to a maximum

to a maximum of

often

ten (10) years

(10) years

in violation in of 18 violation of 18 Pa. C.S.A, §$ 3122.1(b), Pa. C.S.A. 3122.1(b), Count 1- Statutory Count i- Assault: 11 Sexual Assault;

Statutory Sexual 11 Years Years Older,

Older, a

a

Felony I.1. The Felony sentence of The sentence incarceration isis to ofincarceration to be be immediately followed by immediately followed term of a term by a often

ten ((10) years

10) years

ofprobation. of probation. The The Defendant

Defendantwas

was given

given time

time credit

credit for

for three-hundred

three-hundred and

and seventy-five

seventy-five(375) days

(375) days

previously served previously the Venango in the

served in Venango County County Jail. TheDefendant Jail. The Defendant filed filed no

no post-sentence

post-sentence motions.

motions.

On October On October 22, 22, 2024,

2024, the

the Defendant jointly filed Defendantjointly fileda ofappeal notice of anotice appeal and an application andan applicationto

to

proceed InFonna proceedIn Pauperis. The ForaPauperis. The Court Court granted theDefendant's grantedthe Defendant's application application to

to proceed In Forma

proceedIn Forma

Pauperis on Pauperis onOctober October 23,

23, 2024.

2024. The

The Court

Court ordered

orderedthat

thatthe

theDefendant

Defendantfile

file a

a Concise

Concise Statement of

Statementof

MattersComplained Matters Complained of ofOn

OnAppeal pursuanttoto Pa.

Appealpursuant R.A.P. §$ 192S(b)

Pa. R.A.P. onOctober 1925(b) on October23,

23, 2024. On

2024. On

November 12, November 12,2024.

2024. The

TheDefendant fileda

Defendantfiled concisestatement aconcise asserting:

statementasserting:

"The Court "The Court erred erred inin finding

finding that the Commonwealth that the Commonwealth presented presented sufficiently

sufficiently clear

clear and

and

convincingevidence convincing evidencetoto support supporta afinding

findingthat Mr.Blakeney

thatMr. Blakeneyisisa

aSVP

SVPunder

under2424Pa.

Pa. C.S.A.

C.S.A.

§$9799.24(e)(3), thefact consideringthe

9799.24(e)(3),considering factthat thatthere

therewas

wasonly

onlyone

onevictim,

victim,the

theDefendant

Defendantdid didnot

not

exceed the exceed the means means necessary

necessary toto achieve

achievethe defense, the the defense, the Defendant Defendant did not display did not any

display any

unusual cruelty during unusual cruelty during the the cornmission

commission of of the

the crimes, the Defendant crimes, the Defendant had had nono prior

prior

convictionsfor convictions forsex sexoffenses

offensesthe

theDefendant's

Defendant'sdiagnosis

diagnosiswas

wasbased

basedininthe

theage

ageof

ofthe

thevictim,

victim,

and andthe theDefendant

Defendantentered

entereda a`no

'nocontest'

contest'plea."

plea."

SeeAppellant's See ConciseState Appellant'sConcise Stateof of1MMatters Complainedof Matters Complained OnAppeal, ofOn 11/12/2024, Appeal,11/ p.2.

1212024, p.2.

11. II. Analysis Analysis

appeal,the Onappeal, On Defendantasserts theDefendant assertsthat thatthe trialcourt

thetrial courterred

erredininfinding

findingthat

thatthe

the

Commonwealth"sufficiently" Commonwealth proved,by "sufficiently"proved, clearand byclear convincingevidence, andconvincing thatthe evidence,that Defendantisisaa theDefendant

SVP SVPpursuant pursuanttoto42 Pa.C.S.A 42Pa. C.S.A§ $9799.24(a) and(b).

9799.24a)and Additionally,the (b).Additionally, theDefendant Defendantasserts

assertsthat

thatthe

the

Court failed to consider the weight of other evidence such as (1) the fact that there was (1) was only one

victim, (2) victim, (2) the Defendant did not exceed the means necessary to achieve the defense, defense, (3)

(3) the

Defendant did not not display any unusual cruelty cruelty during the commission of the crimes, crimes, (4)

(4) the

the

Defendant had had no

no prior

prior convictions

convictions for

for sex

sex offenses

offenses the

the Defendant's

Defendant's diagnosis

diagnosis was

was based in the

based in the

age age of ofthe the victim, victim, and

and (5)

(5) the

the Defendant

Defendant entered "no contest"

entered aa "no contest" plea.

plea. This

This Court

Court finds

finds that

that the

the

Defendant's Defendant's claim claim goes

goes to

to the

the weight

weight of

ofthe

the evidence

evidence and

and is,

is, therefore,

therefore, waived.

waived.

A A challenge challenge to

to the

the sufficiency

sufficiency of

ofthe

the evidence

evidence and

and a

a challenge

challenge to

to the

the weight

weight of

ofthe

the

evidence evidence are are two two distinct

distinct legal

legal claims.

claims. See Commonwealth. v.». Widmer, See Commonwealth. Widmer, 560 560 Pa. 308, 744

Pa. 308, 744 A.2d

A.2d

745 (Pa. 2000). 745 (Pa. 2000). As As an

an initial

initial matter,

matter, this

this Court

Court struggles

struggles to

to parse

parse out

out the

the nature

nature of

ofthe

the

Defendant's Defendant's claim claim because

because a

a plain

plain text

text reading

reading of

ofthe

the Defendant's

Defendant's concise

concise statement

statement oscillates

oscillates

between a between a purported purported challenge

challenge to

to the

the sufficiency

sufficiency of

ofthe

the evidence

evidence and

and a

a challenge the weight to the

challenge to weightof of

the evidence. the evidence. On On the

the one

one hand,

hand, appellate counsel uses appellate counsel uses the the word

word "sufficiently" in their "sufficiently" in theirconcise concise

statement. statement. On On the

the other

otherhand,

hand, appellate

appellatecounsel

counselpoints

pointsto

to particular

particular facts

facts that,

that, the

the Defendant

Defendant

claims, were claims, were not not appropriately

appropriately weighed bythis weighedby Court. The thisCourt, Theuse

use of

ofthe

theword

word"sufficiently"

"sufficiently"in the

inthe

Concise Statement Concise Statementdoes does not

not in

inand

and of

ofitself

itselftrigger

trigger a

asufficiency

sufficiency claim.

claim. The entirety of

The entirety ofthe

theclaim

claim

when whenread readchallenges challengesthe

theweight

weightof

ofthe

theevidence,

evidence.

A Achallenge challengeto tothe

thesufficiency

sufficiency of

ofthe evidenceisiswhen

theevidence whena defendantasserts adefendant assertsthat

thatthe

the

Commonwealth Commonwealthhas hasfailed

failedtoto establish

establisheach

eachmaterial

materialelement

elementof

ofthe

thecrime

crimecharged.

charged.Id.

Id. In

ln

assertinga asserting achallenge challengetotothe

thesufficiency

sufficiencyof

ofthe

theevidence,

evidence,the

thedefendant

defendantmust

must"specify theelement

"specifythe element

orelements or elementsupon uponwhich

whichthe

theevidence Commonwealthv.• Tyack, insufficient."Commonwealth evidenceisisinsufficient." 128A.3d Tyack, 128 A.3d254,

254,

260 260(Pa.

(Pa.Super.

Super.2015).

2015), However,

However,the

theDefendant

Defendantdoes

doesnot

notassert

assertthat

thatthe

theCommonwealth

Commonwealthhas

has

failed failedtotoestablish establishan

anelement.

element.Rather,

Rather,the

theDefendant

Defendantasserts

assertsthat

thatthe

theCommonwealth

Commonwealthhas

hasnot

notmet

met

their theirburden burdenof ofproof

proofconsidering

consideringthe

thecontradictory

contradictoryevidence.

evidence.This

Thisisismore

moresimilar

similartotoa

achallenge

challenge

of the weight of the evidence. See Commonwealth v. 224 (Pa.

». Meals, 912 A.2d 213, 224 (Pa. 2006)

(finding a a challenge to the reliability of a a SOAB report affects the weight, not the sufficiency of

the Commonwealth's case). The Defendant's claim is therefore a achallenge to the weight of the

evidence.

A A challenge based on the weight of the evidence is a a claim that the fact-finder reached a

a

x

i

verdict not supported by the most persuasive evidence. A A challenge to the weight of the evidence

is a a question of fact targeted at the trial court's discretion. See Commonwealth v. Brown, 538 Pa.

410, 648 A.2d 1177 1177 ((1994).

1994). A

A challenge to the weight of the evidence cannot be granted because

of a a mere conflict in the testimony or because a a different judge on the same facts would have

arrived at a a different conclusion. See Commonwealth v.

• Thompson, 648 A.2d 315

315 (Pa.

(Pa. 1994). A

A

weight challenge is successful where where "notwithstanding all the facts, certain facts are so clearly of

greater weight that to ignore them or to give them equal weight with all the facts is to deny

justice." Id justice. Id.

A A challenge to the weight of the evidence must be raised:

raised: ((I)

1) orally, on the record, at any

time before sentencing, sentencing, (2)

(2) by written motion at any time before sentencing, or or (3) in a

a post-

sentence motion. Pa. R.Crim.P 607(A). Failure to properly preserve a a challenge to the weight of

the evidence will result in a a waiver.

waiver. See Commonwealth v.

». Lofton,

Lofton, 57 A.3d 1274,

1270, 1273 (Pa.

(Pa.

Super, Super. 2012).

2012). Here, the Defendant failed to raise a a challenge to the weight of the evidence either

before before sentencing sentencing or or in

in a

a post-sentence

post-sentence motion. Therefore, the Defendant's challenge to to the

weight of the evidence is waived.

If Ifthe the appellate

appellate court

court finds

finds that the Defendant has not waived his weight of the evidence evidence

claim, claim, the the trial trial court's

court's determination

determination that the

the Defendant is an SVP

SVP pursuant

pursuant to

to 42

42 Pa. C.S.A.

C.S.A. §$

9799.24(e)(3) 9799.24(e)(3) should, should, nonetheless,

nonetheless, be affirmed

affirmed because it is

is supported by the

the weight

weight of

ofthe

the

55

evidence. In making this determination, the trial court must conclude that the Commonwealth

proved, by clear and convincing evidence, that the individual is a a SVP. The clear and convincing

evidence standard standard "requires evidence that is so clear, direct, weighty, and convincing as to

enable the trier of fact to come to to a

a clear conviction, without hesitancy, ofthe hesitancy, of the truth ofthe truth of the precise

precise

facts facts in in issue."

issue." Commonwealth Commonwealth v.• Maldonado, Maldonado, 938

838 A.2d

A2d 7I0,

710, 715

715 (Pa.

(Pa. 2.003).

2003).

Under 42 Under 42 Pa. C.S.A. §$ 9799.12, Pa. C.S.A. 9799.12, a

a defendant

defendant is

is an

an SVP

SVP when

when(1) the Commonwealth (1) the Commonwealth has

has

shown the shown the defendant defendant has

has been

been convicted

convicted of

ofaa sexually violent offense sexually violent offense enumerated enumerated in

in 42

42 Pa.

Pa.

C.S.A. §$ 9799.14 C.S.A. 9799.14 and and (2)

(2) due

due to

to a

a mental

mental abnormality

abnormality or

or personality

personalitydisorder,

disorder, the

the defendant

defendant isis

to engage likely to likely engage in in a

a predatory

predatory sexually violent offense sexually violent pursuant to offense pursuant to 42

42 Pa.

Pa. C.S.A.

C.S.A. 9799.24.

9799.24. Here,

Here,

there there isis no no dispute

dispute that

that the

the Defendant

Defendant was

was convicted

convicted of

ofaa sexually

sexually violent

violent offense.

offense. On

On May

May 28,

28,

2024, the 2024, the Defendant Defendant entered a nolo

entered a nolo contendere contendere plea to statutory plea to sexual assault statutory sexual assault in in violation

violation of 18

of18

.Pa, C.S.A. §$ 3122,1(b), Pa. C.S.A. a sexually 3122.1(b), a sexually violent violent offense

offense enumerated

enumerated in 42 Pa,

in42 C.S.A. §$ 9739.14.

Pa. C.S.A. 9799.14.

In examining In examining the

the second

secondclement,

element, the

the court

court isisrequired

requiredto

to order

order an

an assessment

assessmentto

to be

be

conducted by conducted by a amember

memberof

ofthe SOABto

the SOAR to aid

aid in determiningwhether in determining whetherthe Defendantisislikely theDefendant likelytoto

engage engagein in a sexually violent asexually violentoffense offensedue

due toto a

amental

mentalabnormality.

abnormality. 42

42Pa. C.S.A §$ 9799.24(a).

Pa. C.S.A 9799.24a). In In

conductingthe conducting theassessment, assessment, the

the legislature

legislaturehas

hasprovided anonexclusive provideda listof non-exclusivelist offifteen fifteen((15) factors

15) factors

in42 in 42Pa. C.S.A§$ 9799.24(b)i Pa, C.S.A to consider 9799.24(b)'to whenmaking considerwhen makinga

aSVP

SVPassessment.

assessment.These

Thesefactors

factorsare

arenot

not

1 'The 42Pa. The 42 C.S.A§$9799.24(a)

Pa.C.S.A 9799,24(a)and and(b)

(b)factors

factorsare

areasasfollows;

follows:((I) Factsof

1) Facts ofthe

thecurrent

currentoffense, including:

offense,including:

(j) Whether the affense involved multiple victims, (ii) Whether the individual exceeded the means (i) Whether the offense involved multiple victims, (ii) Whether the individual exceeded the means necessary totonecessary achievethe achieve theoffense, (iii)The offense,(iii) Thenature natreof

ofthe

thesexual

sexualcontact

contactwith

withthe

thevictim,

victim,(iv)

(iv)Relationship

Relationshipofofthe

theindividual

individualtotothe

the

victim, (v) Age of the victim, Whether the offense a display of unusual cruelty by the individual victim, (v) Age of the victim, (vi) whether the offense included adisplay of unusual cruelty by the individual during (vi) included during the thecommission commissionof ofthe

thecrime,

crime,(vii)

(vii)The

Themental

mentalcapacity

capacityof

ofthe

thevictim.

victim.

(2)Prior (2) offensehistory, Prioroffense history,including:

including:(i) Theindividual's (i)The priorcriminal individual'sprior criminalrecord,, record. (ii) Whetherthe

(ii) Whether individual theindividual

completed completedany anyprior sentences,(iii)

priorsentences, Whetherthe (iii)Whether theindividual individualparticipated

participatedininavailable availableprograms

programsfor sexualoffenders.

forsexual offenders.

Characteristicsof (3)Characteristics (3) ofthe individual,including:

theindividual, including:(i)(i)Age, Age,( (ii) Useof

ii) Use illegaldrugs, ofillegal drugs,(iii)

(ii)AnyAnymental

mentalillness, mental

illness,mental

disabilityorormental disability mentalabnormality, abnormality,(iv)

(iv)Behavioral

Behavioralcharacteristics characteristicsthat contributetotothe thatcontribute theindividual's individual'sconduct.

conduct.

(4) Factorsthat (4)Factors thatare aresupported

supportedininaasexual

sexualoffender

offenderassessment

assessmentfield

fieldasascriteria

criteriareasonably relatedtotothe reasonablyrelated therisk risk

of ofre-offense.

re-offense.

a a checklist with each one weighing in some necessary fashion for or against SVP designation.

See Commonwealth v.

• Feucht, 955 A.2d 377,381 377, 381 (Pa.

(Pa. Super. 2408).

2008). There is no statutory

requirement that there be a a certain number of factors present and the non-occurrence of of any of

the factors is dispositive dispositvi e in making a

a SVP determination.

Additionally, the trial court's inquiry at an SVP hearing is different from an SOAB S0AB

assessment. The SOAB must address the fifteen fifteen ((15)

15) factors. However, a

a trial court's role is

is to

to

determine detennine whether the individual has aa "mental abnormality that makes the Defendant likely likely to

to

engage in in predatory sexual sexual offenses."

offenses." Commonwealth v.Amuick, v. Amuick, 297

297 A.3d 770, 779-784

779-780 (Pa.

(Pa.

Super. 2023). While the Board Board is

is to

to examine

examine all

all the

the factors

factors listed

listed under

under 42

42 Pa. C.S.A §$

Pa. C.S.A

9799.24(b), 9799,24(b), the the Commonwealth

Commonwealth does

does not

not have

have to

to show

show any

any certain

certain factor

factor is

is present

present or

or absent

absent in

in a

a

particular particular case.

case. This

This Court

Court keeps

keeps in

in mind

mind that

that an

an expert

expert report

report indicating

indicating that

that an

an individual

individual has

has

an an abnormality abnormality leading leading to

to a

a likelihood

likelihood of

ofaa predatory

predatory sexually

sexually violent

violent offense

offense isis evidence

evidence itself.

itself.

See See Commonwealth Commonwealth . v.• Feucht,

Feucht, 955

955 A.2d

A.24 377

377 (Pa.

(Pa. Super.

Super. 2008)(relying

2008)(relying

. on

on an

an SOAB

SOAB report

report in

in

finding finding the the defendant defendant suffers

suffers from

from a

a mental

mental abnormality

abnormality isis likely

likely to

to engage

engage in

in a

a sexually

sexually violent

violent

offense). offense). However, However, this

this Court

Court isis not

not strictly

strictly bound

bound to

to the

the SOAR

S0AB member's

member's pattern

pattern of

ofanalysis.

analysis.

In reviewing In reviewing a a trial

trial court's

court's SVP

SVP determination,

detennination, the

the appellate

appellate court

court must

must not

not take

take a

a

mechanistic, mechanistic, check-list check-list based

based approach

approach to

tothe

the trial

trial court's

court's determination

determination that

that the

the subject

subject has

has a

a

mental mental disorder, disorder. In In re

re RK

R.K. Jr.,

Jr., 957

957 A.2d

A.2d 780

780 (

Pa. Super. (Pa. Super. 2008).

2008). On

On review,

review, the

the appellate

appellate court's

court's

task task is is "one "one of ofreview

review and

andnot

not one

one ofreweighing

of reweighing or

or assessing

assessing the

the evidence

evidence in

in the

the first

first instance."

instance."

Commonwealth Commonwealth v,v, Meals, Meals, 912

912 A.2d

A.2d213, 223 (Pa.

213,223 (Pa. Super.

Super. 2006).

2006).

Here, the Court ordered William Allenbaugh, a a member of the SOAB, to assess the

Defendant and opine if the Defendant is a a sexually violent predator predator due to a

a mental abnormality

abnormality

or personality disorder. Allenbaugh has been a a member of SOAB for the past past 29 years and was

qualified as an expert in the assessment and treatment of sexual offenders. Sexual Violent

Predator Predator.Determination Determination Hearing Transcript, 10/10/2024, pp.8-9.

pp.8-9. In his report and testimony, he

assessed these fifteen C.S.A §$ 9799.24(a)

fifteen (15) factors contemplated in 42 Pa. C.S.A. 9799.24a) and and (b)

(b) in

concluding that the Defendant is a a SVP. The Court incorporated incorporated his findings findings in its SVP

determination:

1. 1. Whether Whether the the offense

offense involved

involved multiple

multiple victims.

victims. Allenbaugh

Allenbaugh testified

testified that

that there

there was only

was only

one one victim, victim, a a minor

minor child,

child, who

who was

was the

the Defendant's

Defendant's American

American Sign

Sign Language

Language C ASU)

("ASL")

student. student.

2. 2. Whether Whether the the individual

individual exceeded

exceeded the

the means

means necessary

necessary to

to achieve

achieve the

the offense.

offense. The

The

Defendant Defendant did did not

not exceed

exceed the

the means

means necessary

necessary to

to achieve

achieve the

the offense,

offense, however

however the

the victim

victim

indicated indicated that that the

the Defendant

Defendant stated

stated he

he would

would kill

kill her

her if

ifshe

she told

told anyone.

anyone.

3. 3. The The nature nature of of the

the sexual

sexual contact

contact with

with the

the victim.

victim. The

The Defendant

Defendant engaged

engaged in

in grooming

grooming

conduct conduct towards towards the

the victim.

victim. The

The Defendant's

Defendant's conduct

conduct was

was deliberate

deliberate and

and progressive.

progressive. The

The

Defendant Defendant overtime overtime increased

increased the

the nature

nature of

ofhis

his sexual

sexual offenses,

offenses, including

including touching

touching the

the

victim's victim's genitals, genitals, coercing

coercing her

her to

to touch

touch his

his genitals,

genitals, masturbation

masturbation in

in front

front of

ofthe

the victim,

victim,

kissing, kissing, taking taking pictures

pictures of

ofkissing,

kissing, buying

buying sex

sex toys,

toys, forcing

forcing the

the victim

victim to

to use

use the

the sex

sex toys,

toys,

and and ultimately ultimately forcibly forcibly raping

raping the

thevictim.

victim.

4. The 4. The relationship relationship of ofthe

the individual

individual to

to the

the victim.

victim.The

The Defendant

Defendant was

was in

in a

aposition

position of

oftrust.

trust.

The TheDefendant Defendantwas was the

'thevictim's

victim'sASL

ASL interpreter

interpreter and

andthe

theDefendant

Defendant lived

lived with

withthe

thevictim's

victim's

family family for for approximately

approximately six

six(6)

(6) months.

months.

S. The age of 5. of the victim. The victim ranged from twelve twelve (12) fifteen (15)

(12) years old to fifteen (15) years years

ranged from fifty

old. The Defendant's age at the time of the offense ranged fifty (50) years old to fifty-

(50) years fifty-

three (53) three old.

(53) years old.

6. Whether 6. Whether the the offense

offense included

included aadisplay

display of

of unusual

unusual cruelty by

by the

the individual during

during

the erime.

the commission of the crime. The offense did not display any unusual cruelty not display cruelty during during the

commission of the crime.

The mental 7. The mental capacity capacity of

of the

the victim. was no

victim. There was no indication in Allenbaugh's report report that

that

suffered from any

the victim suffered any mental incapacity during the commission commission of the offense.

However, the victim was especially vulnerable due to her young age, disability, and

relationship to the victim.

S. The prior 8. prior conviction history of the defendant. The Defendant was convicted in Texas in

2003 for Failure to Report Child Abuse.

9. Whether 9. Whether the the individual

individual completed

completed any

any prior

prior sentences.

sentences. In connection with the 2003

offense, the Defendant completed completed aaperiod of probation and supervision.

participated in available programs 10, Whether the individual participated programs for sexual offenders. The

any program for sexual offenders.

Defendant has not participated in any

of€ense. The Defendant's ranged from fifty (50) to fifty-

Defendant's age during the offense.

11. The Defendants

three (53) three (53) years old.

The Defendant's 12. The Defendant's use of of illegal drugs. There was no information received to indicate

illegal substances were part of the sexual offense.

13. Whether the Defendant has any mental illness, mental disability or mental

three (3)

abnormality. Over the three (3) year commission of the crime, the Defendant displayed a mental abnormality. Allenbaugh testified that his behavior is consistent with behavior of a

a a paraphilic disorder in the DSM-V-TR.

14. The behavioral characteristics that contribute to the individual's conduct. The conduet. The

Defendant utilized his position Defendant of trust as an interpreter position of to gain access to the victim.

interpreter to victim. This This is

is

heightened by the heightened by the fact fact the

the Defendant

Defendant took

took residency

residency in

in the

the victim's

victim's home

home where

where he

he could

could

readily readily sexually sexually abuse

abuse the

the victim.

victim.

15. 15. Factors Factors that that are

are supported

supported in

in a

a sexual

sexual offender

offender assessment

assessment field

field as

as criteria

criteria reasonably

reasonably

related to related to the the risk

risk of

of re-offense. Allenbaugh testified re-offense. Allenbaugh testified that the Defendant that the Defendant isis atat a arisk risk for

for

reoffending reoffending because because he

he has

has a

a paraphilic

paraphilic disorder

disorder to

to non-consenting

non-consenting minors,

minors, a

a lifetime

lifetime

disorder according disorder according to to the

the DSM-V-TR.

DSM-V-TR. Therefore,

Therefore, due

due to

to his

his mental

mental abnormality,

abnormality, the

the

Defendant Defendant isis likely likely to

to engage

engage in

in a

a sexually

sexually violent

violent offense.

offense.

In In reviewing reviewing these

these determinations,

determinations, this

this Court

Courtfound

found Allenbaugh's

Allenbaugh's testimony

testimony toto be

becredible.

credible.

This This Court Court isis aware awarethat

thatjust

just because

becauseaatestifying

testifying.Board

Boardmember

member isis found

foundto

to be

be credible,

credible, does

does

notnecessarily not necessarily lead leadto

to the

the conclusion thatthe

conclusionthat theCommonwealth Commonwealth has

has proved

proved by clearand

by clear and

convincing evidence convincing evidencethe theDefendant

Defendantisis a

asexually

sexually violent

violentpredator.

predator. See CommonwealthV.» See Commomvealth

Lipphardt, Lipphardt, 841 841 A-2d

A.2d551,

551, 555-556

555-556(Pa.

(Pa. Super.

Super. 2004).

2004). However,

However, the

thefacts

facts relied

reliedupon

upontotomake

make

an an SVP SVP determination determinationremain

remainundisputed.

undisputed.At

Atthe

theOctober

October 10,

10, 2024,

2024, Sexually

Sexually Violent

ViolentPredator

Predator

Determinationhearing, Determination hearing,defense defensecounsel

counseloffered

offeredno

nocontradictory

contradictory expert

experttestimony

testimonytotodispute

dispute

Allenbaugh's Allenbaugh'sfindings.

findings.Defense

Defensecounsel's

counsel'scross-examination cross-examinationmerely

merelyprobed

probedinto

intoAllenbaugh's

Allenbaugh's

methodology, notdisputing methodology,not anyfacts disputingany factsatatissue, issue.See

SeeSexually

SexuallyMiolent

ViolentPredator

PredatorDetermination

Determination

Hearing, Hearing, 1011012024, 10/10/2024,pp.

pp.28-36.

28-36. Even

Eventhe

theinstant

instantappeal

appealdoes

doesnot

notchallenge

challengethe

thefacts

factsatatissue,

issue,

ititmerely merelychallenges challengeshow

howthe

theCourt

Courtweighed

weighedeach

eachfactor

factorininmaking

makingits

itsSVP

SVPdetermination.

determination.The

The

Defendant's Defendant'sarguments argumentsrelate

relateprimarily

primarilytotoweight

weightand

andcredibility

credibilityof

ofthe

theCommonwealth's

Commonwealth's

9

9

....

efforts affect the weight and not evidence, such efforts not the sufficiency of the Commonwealth's case.

Sec Commonwealth • See v, Feucht, 955 A.2d 377, 382 382 (Pa, 2448).

(Pa. Super. 2008).

This Court has reviewed the facts in issue and, as stated above, this Court has diligently

considered the testimony and evidence presented at the SVP hearing in consideration of the

statutory factors laid out statutory factors out in 42 Pa. C.S.A C.S.A §$ 9799.24(a) and

and (b). some factors (b), While some factors are clearly not

three (3) year period, engaged present, the undisputed fact remains that the Defendant, over the three

in increasingly offensive offensive sexual acts with the victim without hesitation or remorse. The

genitals, forced her to touch his genitals, Defendant touched the victim's genitals, genitals, masturbated in front front of

took pictures of the victim kissing, the victim, kissed the victim, took ksi sing, bought sex toys toys for the victim,

watched the victim use the sex toys, and ultimately forcibly raped the victim.

The Defendant's actions are aggravated by the fact that he lie used his unique position of trust

and used that position to prey upon aavulnerable victim. The victim is deaf, therefore, of aa

heightened vulnerability. The Defendant was her American Sign Language interpreter. He used

victim's family invited

his position to gain the trust of the victim and the victim's family. The victim's

in their home. The Defendant used this trust him to live in trust and access to normalize his inappropriate

victim and ensure her silence. The Defendant threatened to kill the victim sexual contact with the victim

if she ever told anyone about the sexual abuse abuse..

..

Allenbaugh's

This Court finds that the details of the Defendant's sexual offense paired with Allenbaughs

expert diagnosis credible expert diagnosis of the Defendant's paraphilic paraphilic mental

mental condition according to the DSM-

V-TR, clearly V-TR, clearly and and convincingly

convincingly establish the Defendant Defendant is a

aSVP.

ZTI. II. Conclusion

For the reasons articulated above, the Court finds the claim asserted by the Defendant on

appeal appeal meritless.

meritless.

BY THE COURT,

2MS.CO MATfHBW MATTHEW T. KIRTL.AND,

KIRTLAND, President Judge

cc: Tina Fryling, Esq.

PD DA LE RLW

II