J-S38019-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHRISTOPHER MATSINGER : : Appellant : No. 1071 EDA 2024
Appeal from the Judgment of Sentence Entered March 8, 2024 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0008045-2019
BEFORE: STABILE, J., BECK, J., and STEVENS, P.J.E.*
MEMORANDUM BY BECK, J.: FILED DECEMBER 05, 2024
Christopher Matsinger (“Matsinger”) appeals from the judgment of
sentence imposed by the Montgomery County Court of Common Pleas (“trial
court”) following his guilty plea to one count of involuntary deviate sexual
intercourse with a child, two counts of aggravated indecent assault of a child,
and one count of endangering the welfare of a child. 1 Matsinger’s sole issue
challenges the sufficiency of the evidence supporting the trial court’s finding
that he was a sexually violent predator (“SVP”). We affirm.2
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. §§ 3123(b), 3125(a)(8), 3804.
2 We have amended the caption to reflect that Matsinger’s appeal is from the
underlying judgment of sentence as made final by the trial court’s SVP (Footnote Continued Next Page) J-S38019-24
The basic facts underlying the plea are straightforward. Sometime in
2019, Matsinger informed his now ex-wife that he had sexually abused their
biological daughter, Z.M., for almost a decade. Z.M. estimated in a police
interview that Matsinger had abused her multiple times per week from the
time she was six or seven years old up through her fifteenth birthday. His
acts included digitally penetrating her vagina, Matsinger’s performance of oral
sex, and forcing Z.M. to perform oral sex.
The Commonwealth filed a criminal information charging Matsinger with
dozens of crimes. Matsinger agreed to plead guilty to the above crimes in
exchange for an aggregate sentence of twelve to twenty-five years of
incarceration followed by a five-year period of probation. 3 On September 28,
2021, the trial court accepted the plea and immediately sentenced Matsinger
to the agreed-upon sentence. The court also scheduled an assessment by the
Sexual Offender Assessment Board (“SOAB”) to determine if Matsinger is an
SVP.
Following several postponements, the trial court held the SVP hearing
on March 8, 2024. Each side presented an expert witness in the field of
determination. See Commonwealth v. Schrader, 141 A.3d 558, 561 (Pa. Super. 2016) (“[W]here a defendant pleads guilty and waives a pre-sentence SVP determination, the judgment of sentence is not final until that determination is rendered.”)
3 Additionally, Matsinger stipulated that some of the offenses occurred on or
after December 20, 2012, making Subchapter H of the Sexual Offender Registration and Notification Act applicable.
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evaluating and assessing SVPs. See N.T., 3/8/2024, at 10-11 (stipulation to
Commonwealth’s expert), 32 (stipulation to Matsinger’s expert). The
Commonwealth’s expert was Robert Stein, Ph.D., a psychologist who assessed
Matsinger on behalf of the SOAB, opined to a reasonable degree of
professional and scientific certainty that Matsinger has pedophilic disorder and
that he abused Z.M. because of this mental abnormality. Matsinger’s expert,
Jennifer Weeks, Ph.D., an owner of an SOAB-approved outpatient treatment
program for sexual offenders, opined to a reasonable degree of professional
certainty that Matsinger was not an SVP.
The trial court found Dr. Stein to be credible, accepted his testimony,
and determined that the Commonwealth met its burden. Trial Court Opinion,
5/31/2024, at 11 (“Dr. Stein testified credibly that, based on his consideration
of the factors required by law, defendant suffers from a mental abnormality
that makes it likely he will engage in sexually predatory offenses.”). Matsinger
timely appealed.
His sole issue on appeal asserts that the Commonwealth presented
insufficient evidence to meet its burden that he was an SVP. Matsinger’s Brief
at 12. While acknowledging that Dr. Stein diagnosed him as a pedophile,
Matsinger avers that this conclusion was based solely on the “long-term sexual
interest” and the repeated history of “acting on such interests with his
daughter.” Matsinger’s Brief at 14. He reasons that “under Dr. Stein’s logic,
all repeat incestuous sexual activity between an adult and child automatically
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constitutes a SVP [sic].” Id. Matsinger also cites Dr. Weeks’ conflicting
testimony describing Matsinger as “not an actual pedophile [who] did not have
a sexual interest in prepubescent children.” Id. at 15. Matsinger alleges that
this testimony undermines “the evidence presented by the Commonwealth’s
expert” and that the Commonwealth thus failed to prove that Matsinger was
an SVP. Id. In his view, Dr. Weeks’ testimony “was more nuanced, precise
and should have given the [t]rial [c]ourt doubt regarding the … risk of
reoffending.” Id.
Whether the evidence was sufficient to support the SVP designation
presents a question of law, for which our standard of review is de novo and
scope of review plenary. See Commonwealth v. Meals, 912 A.2d 213, 218
(Pa. 2006); Commonwealth v. Aumick, 297 A.3d 770, 776 (Pa. Super.
2023) (en banc). The Commonwealth must present clear and convincing
evidence, which “falls between the criminal beyond a reasonable doubt
standard and the civil preponderance of the evidence standard.”
Commonwealth v. Woeber, 174 A.3d 1096, 1105 (Pa. Super. 2017). The
evidence must be “so clear, direct, weighty, and convincing” that the factfinder
arrived at the conclusion with a “clear conviction … of the truth of the precise
facts” at issue. Meals, 912 A.2d at 219 (quoting Commonwealth v.
Maldonado, 838 A.2d 710, 715 (Pa. 2003)). We view the evidence in the
light most favorable to the Commonwealth as the party who prevailed, and
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we draw all reasonable inferences in its favor. Commonwealth v. Moody,
843 A.2d 402, 408 (Pa. Super. 2004).
At the outset, we note that Matsinger’s challenge is not to the sufficiency
of the evidence to support the trial court’s determination, but to the weight
given to that evidence by the trial court. As recited above, Matsinger assails
the trial court’s finding that the Commonwealth’s expert was credible and its
concomitant failure to credit the testimony of the expert he presented. This
is a textbook weight claim. See Commonwealth v. Smyser, 195 A.3d 912,
916 (Pa. Super. 2018) (“An argument that the finder of fact should have
credited one witness’s testimony over that of another goes to the weight of
the evidence, not the sufficiency of the evidence.”); see also
Commonwealth v. Fuentes, 991 A.2d 935, 945 (Pa. Super. 2010) (en banc)
(during an SVP proceeding, a defendant is “free … to argue to the fact-finder
that the Commonwealth’s expert’s conclusions should be discounted or
ignored,” but “such arguments would affect the weight, and not the sufficiency
of the expert’s evidence”). A challenge to the weight of the evidence must be
preserved through a post-sentence motion. See Pa.R.Crim.P. 607(A). The
record reflects that Matsinger failed to preserve the issue. Moreover, a
challenge to the weight of the evidence necessarily concedes evidentiary
sufficiency. See Commonwealth v. Miller, 172 A.3d 632, 643 (Pa. Super.
2017) (“[A] true weight of the evidence challenge concedes that sufficient
evidence exists to sustain the verdict but questions which evidence is to be
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believed.”) (citation omitted). Therefore, on these bases, the argument
Matsinger raised before this Court is waived. To the extent his brief could be
viewed as raising a challenge to the sufficiency of the evidence, it is meritless.
“The procedure for determining SVP status is statutorily mandated and
well-defined.” Aumick, 297 A.3d at 777. The first step is the presentence
SOAB assessment. Id. In addition to following standards established by the
SOAB, the assessor considers the following fifteen factors mandated by the
General Assembly.
(1) Facts of the current offense, including:
(i) Whether the offense involved multiple victims.
(ii) Whether the individual exceeded the means necessary to achieve the offense.
(iii) The nature of the sexual contact with the victim.
(iv) Relationship of the individual to the victim.
(v) Age of the victim.
(vi) Whether the offense included a display of unusual cruelty by the individual during the commission of the crime.
(vii) The mental capacity of the victim.
(2) Prior offense history, including:
(i) The individual's prior criminal record.
(ii) Whether the individual completed any prior sentences.
(iii) Whether the individual participated in available programs for sexual offenders.
(3) Characteristics of the individual, including:
(i) Age.
(ii) Use of illegal drugs.
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(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. § 9799.24(b).
The SOAB then submits a written report containing its assessment to
the district attorney, id. § 9799.24(d), who retains the option to seek a formal
hearing before the trial court. Id. § 9799.24(e)(1). At that hearing, the trial
court “shall determine whether the Commonwealth has proved by clear and
convincing evidence that the individual is a sexually violent predator.” Id. §
9799.24(e)(3).
The trial court’s role is distinct from that of the SOAB in that it must
determine whether the Commonwealth met its burden that the defendant is
an SVP by clear and convincing evidence. Aumick, 297 A.3d at 778-79. The
General Assembly defines “sexually violent predator” as an individual who “is
determined to be a sexually violent predator … due to a mental abnormality
or personality disorder that makes the individual likely to engage in predatory
sexually violent offenses.” 42 Pa.C.S. § 9799.12. 4 “Mental abnormality” is
4 The offender must also be convicted of a “sexually violent offense,” which is defined as the list of offenses graded by tier within 42 Pa.C.S. § 9799.14. Three of Matsinger’s convictions qualify. The term “predatory” is defined as acts “directed at a stranger or at a person with whom a relationship has been initiated, established, maintained or promoted, in whole or in part, in order to (Footnote Continued Next Page)
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defined as “[a] congenital or acquired condition of a person that affects the
emotional or volitional capacity of the person in a manner that predisposes
that person to the commission of criminal sexual acts to a degree that makes
the person a menace to the health and safety of other persons.” Id.5
We now review the evidence presented to the trial court. Dr. Stein
concluded that Matsinger meets the standard established by the Diagnostic
and Statistical Manual of Mental Disorders (“DSM-5”) for pedophilic disorder.
He summarized the criteria as follows:
An individual has to have sexual behaviors or interests in young children over a period of six months or more and acting on that interest to victimize the child. Not merely having an interest. An individual could have such interest and never act on it. But to get the diagnosis of pedophilic disorder it has to be acted upon. And it was in this case for a number of years.
N.T., 3/8/2024, at 20.
This diagnosis was described by reference to the fifteen statutory factors
set forth in 9799.24(b). Of the first seven factors, concerning the nature of
the sexual offenses, Dr. Stein deemed three relevant: the nature of the sexual
contact with the victim; the relationship of the individual to the victim; and
the age of the victim. N.T., 3/8/2024, at 15; see 42 Pa.C.S. §
9799.24(b)(1)(iii)-(v). The other four he found were not pertinent, as the
facilitate or support victimization.” 42 Pa.C.S. § 9799.12. Matsinger does not dispute that his acts were predatory.
5 “Personality order” is not separately defined.
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offense involved one victim, did not involve cruelty or excessive means, and
Z.M. was of normal mental capacity. N.T. 3/8/2024, at 15-16; see 42 Pa.C.S.
§ 9799.24(b)(1)(i),(ii),(vi),(vii). Dr. Stein deemed the nature of the contact
particularly relevant, as committing a “variety of penetrative and non-
penetrative sexual acts” is “consistent with … pedophilic behavior or behavior
that reflects a sexual interest in sexual behaviors with young children.” N.T.,
3/8/2024, at 15; see 42 Pa.C.S. § 9799.24(b)(1)(iii). The biological
relationship between Matsinger and his daughter was “consistent with sexual
deviance or incestuous interests,” and the abuse starting at a young age was
“consistent with a pedophilic disorder.” N.T., 3/8/2024, at 15.
Turning to the next set of factors, pertaining to the offender’s
characteristics, 42 Pa.C.S. § 9799.24(b)(3), Dr. Stein emphasized the age
disparity between Matsinger and his daughter. N.T., 3/8/2024, at 16; 42
Pa.C.S. § 9799.24(b)(3)(i). There was a “roughly 30-year age difference”
between them, which “is consistent with a pedophilic disorder.” N.T.,
3/8/2024, at 16. Addressing the “behavioral characteristics” that contributed
to the abuse, Dr. Stein cited Matsinger’s “long[-]term sexual interest” in Z.M.,
noting that Z.M.’s interview indicated hundreds of assaults. Id. at 17; see 42
Pa.C.S. § 9799.24(b)(3)(iv).6
6 The remaining two factors under this heading, addressing the offender’s use
of illegal drugs or whether he had an existing mental illness, were not relevant. 42 Pa.C.S. § 9799.24(b)(3)(ii-iii).
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The sole factor contained within subsection (b)(4), which is more or less
a catchall provision, requires the assessor to consider “[f]actors that are
supported in a sexual offender assessment field as criteria reasonably related
to the risk of reoffense.” 42 Pa.C.S. § 9799.24(b)(4). Dr. Stein again cited
the fact that the abuse consistently occurred over a long period of time,
opining that “a sustained sexual interest in a young child is associated with
increased risk” of recidivism. N.T., 3/8/2024, at 17. Dr. Stein also testified
that Matsinger’s pedophilia was the impetus for his crimes. 7 Id. at 23
(concluding that Matsinger “either could not or would not control urges to
molest his young daughter”).
Dr. Weeks agreed with Dr. Stein that Matsinger fit the DSM-5 criteria
for pedophilic disorder. Id. at 37 (“So based on the DSM-5 diagnostic criteria
for pedophilic disorder he does meet those criteria.”). Dr. Weeks disagreed
with Dr. Stein, however, as to whether Matsinger was himself a pedophile,
and the associated question of whether that abnormality was “the impetus for
the sexual offending.” Id. at 43. Dr. Weeks, who, unlike Dr. Stein, was
permitted to interview Matsinger, explained that she performed testing to
7 The “[p]rior offense history” category did not apply as Matsinger had no prior
record and had never participated in any sexual offender programs. Id. § 9799.24(b)(2)(i-iii).
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measure his reaction time to various images. 8 Based on those results, Dr.
Weeks concluded that Matsinger “does not objectively test as having sexual
interests in prepubescent children, which would be pedophilia itself.” Id. She
concluded to a reasonable degree of professional certainty that pedophilia did
not explain his predations. Id. at 37. She explained that “the majority of
incest offenders are not pedophilic,” and described this as a “classic incest
case” in which Matsinger effectively substituted his biological child for the role
of his wife. Id. at 44-45. Finally, Dr. Weeks opined that Matsinger was not
likely to reoffend, citing actuarial assessments that the risk of reoffending
significantly drops off with age. Id. at 42. Because Matsinger will be
approximately sixty years old at his earliest eligible release date, Dr. Weeks
believed Matsinger was not likely to recidivate. Id.
We conclude that the evidence presented met the Commonwealth’s
burden. Matsinger’s attempt to limit the evidence supporting the SVP
designation to Dr. Stein’s testimony that an incestual relationship by itself
establishes pedophilia misconstrues the record. In context, Dr. Stein
8 Specifically, Dr. Weeks conducted an “ABEL screen, which is a visual reaction
time test for sexual interest.” N.T., 3/8/2024, at 39. According to Dr. Weeks, this testing was “important because when we are looking at paraphilic motivation to offend, or the mental abnormality of pedophilia, that is an objective screen of that measure as well.” Id. The test subject “looks at images, non-pornographic images but images of men, women, boys and girls of various ages and races. And they are asked to do various tasks on the computer while looking at these images.” Id. The test measures the subject’s sexual interests based on how long he or she looks at the images.
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considered the incestual nature of the sexual conduct as one of many relevant
factors. Dr. Stein relied on the various types of sexual activity, i.e., oral sex
and digital penetration, in combination with Z.M.’s age, the biological
relationship, and the lengthy history of abuse both in terms of chronological
length and frequency, to support his diagnosis of pedophilic disorder.
In this respect, an expert’s diagnosis is itself evidence. In Meals, a
SOAB expert opined that Meals “had a mental abnormality or personality
disorder, i.e., pedophilia, as evidenced by his sustained sexual attraction to
the child victims and his acting upon that attraction.” Meals, 912 A.2d at
215. This Court concluded that the SVP designation was not supported by
sufficient evidence, as several of the fifteen statutory factors were either not
present or did not support an SVP designation. We additionally determined
that the expert’s “‘diagnosis of pedophilia’ was problematic because it ‘seems
based entirely on the age of the victims’[.]” Id. at 223 (citation omitted).
The Supreme Court reversed, holding that these conclusions misapplied
the standard of review. First, the Court observed that the statutory factors
do not “operate as a checklist where each factor weighs, in some absolute
fashion, either for or against an SVP classification.” Id. at 222. Turning to
the expert’s diagnosis, the Meals Court stressed that a supported diagnosis
is substantive evidence.
The majority’s discounting of the finding of pedophilia is also troubling because it ignores [the] expert opinion—that, to a reasonable degree of professional certainty, [Meals] was a pedophile—itself was evidence. To the extent [Meals] felt that
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the expert’s “diagnosis” was not fully explained, did not square with accepted analyses of the disorder, or was simply erroneous, he certainly was free to introduce evidence to that effect and/or to argue to the factfinder that the Commonwealth’s expert’s conclusions should be discounted or ignored. But that argument would affect the weight, and not the sufficiency, of the expert’s evidence.
Id. at 223–24 (footnote omitted; emphasis in the original).
Here, the trial court credited Dr. Stein’s testimony in the aggregate,
including his opinion, rendered to a reasonable degree of scientific certainty,
that Matsinger has a pedophilic disorder. That diagnosis is itself competent
evidence that Matsinger suffers from a mental abnormality. See id.; see also
Commonwealth v. Hollingshead, 111 A.3d 186, 193 (Pa. Super. 2015)
(holding that an expert’s diagnosis of hebephilia, which is not recognized in
the DSM-5, is sufficient to support a finding of mental abnormality).
Moreover, Dr. Stein offered sufficient evidence to enable the trial court to
conclude that this affliction explains why he abused his daughter.
Commonwealth. v. Geiter, 929 A.2d 648, 651 (Pa. Super. 2007) (“The
salient inquiry to be made by the trial court is the identification of the impetus
behind the commission of the crime ….”).
We acknowledge that, unlike the appellant in Meals, Matsinger offered
expert testimony that contradicted Dr. Stein’s diagnosis. To the extent that
those challenges implicate the sufficiency of the evidence in terms of the
validity of the diagnosis itself, we note that Dr. Weeks agreed that Matsinger’s
behavior fit the DSM-5 criteria for pedophilia. Thus, Matsinger’s position
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appears to be that, in the absence of direct proof of Matsinger’s motivation,
the trial court was required to accept Dr. Weeks’ testimony. This conflicts
with the applicable standard of review, which requires that we view the
evidence in the light most favorable to the Commonwealth, with all inferences
be drawn in favor of the Commonwealth, as the prevailing party. See Moody,
843 A.2d at 408. To that end, Dr. Stein’s opinion and accompanying
testimony, based on his review of the fifteen statutory factors, served to link
his pedophilic disorder to the abuse, and the trial court was entitled to credit
that testimony. We therefore conclude that the evidence was sufficient to
establish that Matsinger has a mental abnormality, and that this abnormality
caused his predatory behavior. See Hollingshead, 111 A.3d at 194
(rejecting claim that defendant’s expert testimony proved she was not an SVP
where trial court chose to believe the Commonwealth’s expert over the
defendant’s expert, and this Court “may not disturb that credibility
determination”).
Judgment of sentence affirmed.
Date: 12/5/2024
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