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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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.
-2- 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.
-3- 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
-4- 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.
-5- J-S18009-25
DATE: 6/25/2025
-6- 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.
1 1 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
22 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
3 3 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
4 4 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.
55 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).
6 6 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.
7 7 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
8 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.
10 10 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 11