Com. v. King, S.

Superior Court of Pennsylvania·Decided November 21, 2016·No. 1749 EDA 2015·Unpublished

Opinion

J-S79006-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

STEPHEN KING

Appellant No. 1749 EDA 2015

Appeal from the Order Entered April 13, 2015 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0004595-2013

BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 21, 2016

Appellant, Stephen King, appeals from the order entered in the Lehigh

County Court of Common Pleas, which classified Appellant as a sexually

violent predator (“SVP”). We affirm.

The relevant facts and procedural history of this case are as follows.

In July 2013, Appellant began residing with a friend’s family. During this

time, Appellant masturbated his friend’s son (“Victim”) while Appellant

fondled himself. Victim and another child, who was in the room during the

incident, reported the sexual abuse. As a result, the Commonwealth

charged Appellant on November 18, 2013, with corruption of minors and

indecent assault. On April 29, 2014, Appellant entered a nolo contendere

plea to indecent assault, and the court ordered the Sexual Offender

Assessment Board (“SOAB”) to assess Appellant and determine if Appellant J-S79006-16

met the criteria for SVP classification. After learning about the potential SVP

classification, Appellant filed a motion to withdraw his plea on August 29,

2014. The court subsequently granted Appellant’s motion. On October 20,

2014, Appellant again entered a nolo contendere plea to indecent assault,

and the court immediately sentenced Appellant to time served to twenty-

four (24) months’ imprisonment. The court ordered the SOAB to assess

Appellant and determine if Appellant met the criteria for SVP classification.

SOAB member, Dr. Veronique Valliere conducted Appellant’s assessment.

The court held a SVP hearing on March 27, 2015, which continued on

April 13, 2015, where Dr. Valliere testified on behalf of the Commonwealth.

Dr. Valliere testified that her assessment of Appellant revealed Appellant

met the diagnostic criteria for other-specified personality disorder.

Specifically, Dr. Valliere stated that Appellant exhibits many antisocial and

narcissistic traits. Dr. Valliere further opined that Appellant’s disorder makes

him likely to engage in future predatory behavior. Dr. Robert M. Gordon

testified on behalf of Appellant at the SVP hearing. Dr. Gordon stated

Appellant has poor impulse control due to his paranoid schizophrenia, but he

does not suffer from a personality disorder. Dr. Gordon concluded that

Appellant does not meet the criteria for SVP classification. At the conclusion

of the April 13, 2015 hearing, the court determined the Commonwealth had

proved by clear and convincing evidence that Appellant met the criteria for

SVP classification.

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On April 23, 2015, Appellant timely filed a motion to reconsider the

court’s imposition of SVP status, which the court denied on May 14, 2015.

On June 12, 2015, Appellant timely filed a pro se notice of appeal.1 On June

25, 2015, the court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely

complied pro se on July 14, 2015.

Appellant raises the following issue for our review:

[WHETHER APPELLANT’S SVP CLASSIFICATION WAS SUPPORTED BY SUFFICIENT EVIDENCE?]

(Appellant’s Brief at 2).2

Our standard review of a trial court’s SVP designation is as follows:

[T]o affirm an SVP designation, we, as a reviewing court, must be able to conclude that the fact-finder found clear ____________________________________________

1 An appellant has thirty (30) days to file an appeal from a SVP determination. See Commonwealth v. Schrader, 141 A.3d 558, 561 (Pa.Super. 2016) (explaining judgment of sentence is not appealable until court renders SVP determination because imposition of SVP status is component of judgment of sentence). Likewise, a post-sentence motion filed within ten (10) days of the SVP determination tolls the appeal period until the disposition of the post-sentence motion. Here, Appellant filed his motion to reconsider within ten days of his SVP determination, which tolled the appeal period. The court ultimately denied Appellant’s motion to reconsider on May 14, 2015. Thus, Appellant’s notice of appeal, filed on June 12, 2015, within thirty days of the court’s denial of his motion for reconsideration, was timely. 2 Appellant filed a counseled brief, but the brief is missing a statement of questions involved as well as a statement of both the scope of review and the standard of review, summary of the argument, and a short conclusion stating the precise relief sought. See Pa.R.A.P. 2111. Nevertheless, we discern the issue from Appellant’s brief.

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and convincing evidence that the individual is a[n SVP]. As with any sufficiency of the evidence claim, we view all evidence and reasonable inferences therefrom in the light most favorable to the Commonwealth. We will reverse a trial court’s determination of SVP status only if the Commonwealth has not presented clear and convincing evidence that each element of the statute has been satisfied.

Commonwealth v. Hollingshead, 111 A.3d 186, 189 (Pa.Super. 2015),

appeal denied, ___ Pa. ___, 125 A.3d 1199 (2015) (internal citation

omitted).

“After conviction but before sentencing, a court shall order an

individual convicted of a sexually violent offense to be assessed by the

[SOAB].” 42 Pa.C.S.A. § 9799.24(a). Section 9799.24(b) provides:

§ 9799.24. Assessments

* * *

(b) Assessment.—Upon receipt from the court of an order for an assessment, a member of the board…shall conduct an assessment of the individual to determine if the individual should be classified as a sexually violent predator. The board shall establish standards for evaluations and for evaluators conducting the assessments. An assessment shall include, but not be limited to, an examination of the following:

(1) Facts of the current offense, including:

(i) Whether the offense involved multiple victims. (ii) Whether the individual exceeded the means necessary to achieve the offense. (iii) The nature of the sexual contact with the victim. (iv) Relationship of the individual to the victim.

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(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.

42 Pa.C.S.A. § 9799.24(b). The SOAB’s duty is to assess the defendant; it

does not perform an adjudicative function. Commonwealth v. Kopicz, 840

A.2d. 342, 351 (Pa.Super. 2003).

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