Com. v. Popp, C.

• Court: Superior Court of Pennsylvania
• Decided: June 1, 2023
• Docket: 1403 MDA 2022
• Status: Unpublished

Opinion

J-S08043-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CAROL MARIE POPP : : Appellant : No. 1403 MDA 2022

Appeal from the Judgment of Sentence Entered September 9, 2022 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0001496-2021

BEFORE: OLSON, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED: JUNE 1, 2023

Appellant, Carol Marie Popp, appeals from the judgment of sentence of

imposed by the Court of Common Pleas of Dauphin County following her guilty

pleas to eight counts of sexual assault, six counts of institutional sexual

assault, three counts of indecent assault, and one count of criminal

solicitation-tampering with evidence.1 For the reasons set forth below, we

affirm.

On November 22, 2021, Appellant pled guilty to the above offenses for

committing numerous sex acts with an intellectually disabled and autistic male

resident (Victim) of a group home where she was employed as an aide. N.T.

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* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S. §§ 3124.1, 3124.2(a), 3126(a)(1), and 902(a), respectively. J-S08043-23

Guilty Plea at 2-4; Written Guilty Plea Colloquy. These sex acts occurred

between February 1 and February 22, 2021 and included urination and

defecation on Victim in the course of the sexual conduct. N.T. Guilty Plea at

3-4. Following Appellant’s guilty pleas, the court ordered that Appellant be

assessed by the Sexual Offenders Assessment Board (SOAB) to determine

whether she should be classified as a Sexually Violent Predator (SVP) under

the Sexual Offender Registration and Notification Act (SORNA), 42 Pa.C.S. §

9799.10, et seq. Trial Court Order, 11/29/21.

On September 9, 2022, the trial court held a hearing on whether

Appellant should be classified as an SVP and to sentence Appellant. At this

hearing, the trial court heard testimony from the SOAB evaluator who

assessed Appellant and an expert retained by Appellant. N.T. SVP &

Sentencing Hearing at 3-61. Following this testimony, the trial court found

that Appellant was an SVP. Id. at 69. The trial court then imposed

consecutive sentences of 3 to 6 years’ incarceration and 2 to 4 years’

incarceration for two of the sexual assault convictions, concurrent sentences

of 3 to 6 years’ incarceration for the remaining six sexual assault convictions,

a consecutive sentence of 3 years’ probation for one of the institutional sexual

assault convictions, concurrent sentences of 1 to 2 years’ incarceration for the

other five institutional sexual assault convictions, concurrent sentences of 6

to 12 months’ incarceration for the indecent assault convictions, and no

further penalty for the criminal solicitation conviction, resulting in an

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aggregate sentence of 5 to 10 years’ incarceration followed by 3 years of

probation. Id. at 81-85; Sentencing Order. This timely appeal followed.

In this appeal, Appellant challenges only the trial court’s determination

that she is an SVP. A defendant may be determined to be an SVP if she has

been convicted of a sexually violent offense and, following an assessment by

an SOAB evaluator, the Commonwealth proves by clear and convincing

evidence at an SVP hearing that the defendant suffers from a mental

abnormality or personality disorder that makes her likely to engage in

predatory sexually violent offenses. 42 Pa.C.S. §§ 9799.12, 9799.24;

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

Seventeen of Appellant’s convictions were offenses defined by SORNA as

sexually violent offenses on which an SVP determination can be based. 42

Pa.C.S. §§ 9799.12, 9799.14(b)(5), (6), (d)(5).

To prove the element of mental abnormality or personality disorder, “the

evidence must show that the defendant suffers from a congenital or acquired

condition 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.” Hollingshead, 111 A.3d at 189-90 (quoting Commonwealth v.

Stephens, 74 A.3d 1034 (Pa. Super. 2013)). In addition, it must be shown

that the defendant’s conduct was predatory. Hollingshead, 111 A.3d at 190.

Predatory conduct is defined as an “act directed at a stranger or at a person

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with whom a relationship has been initiated, established, maintained or

promoted, in whole or in part, in order to facilitate or support victimization.”

42 Pa.C.S. § 9799.12.

In performing an SVP assessment, the evaluator must consider all of the

following 15 factors:

(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.

(iii) Any mental illness, mental disability or mental abnormality.

(iv) Behavioral characteristics that contribute to the individual’s conduct.

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(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); see also Hollingshead, 111 A.3d at 190. An

expert testifying in support of an SVP designation must opine on whether the

defendant has a propensity to reoffend, but the risk of reoffending is only a

factor that must be considered in making the SVP assessment, not a separate

requirement that must be satisfied. Hollingshead, 111 A.3d at 190, 194;

Stephens, 74 A.3d at 1038-39. In evaluating the sufficiency of the evidence

to support an SVP designation, this Court may not reweigh the factors that

are relevant to whether the defendant is an SVP and must limit its review to

whether the facts on which the SVP determination is based are supported by

sufficient evidence. Commonwealth v. Meals, 912 A.2d 213, 220-25 (Pa.

2006).

The evidence at the SVP hearing in this case consisted of the testimony

of the SOAB evaluator and Appellant’s expert. The SOAB evaluator opined

that Appellant suffered from other specified paraphilic disorder, with the

specifications of non-consent, sadism, masochism, urophilia, coprophilia, and

fetish. N.T. SVP & Sentencing Hearing at 8. The SOAB evaluator testified that

this diagnosis was supported by the evidence of the persistence of the acts

(at least eight incidents over a three-week period), the intensity of the acts,

the lack of consent, and the nature of the sexual behaviors, which included

urine, feces, physical assault, humiliating Victim, having him physically assault

her, and fetishes of having Victim wear makeup, the use of whip cream, and

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Appellant dressing Victim in bras and panties. Id. at 9-12, 28-29. The SOAB

evaluator acknowledged that the conduct lasted only three weeks, that there

was no prior history of sexual crimes or abnormalities, and that the Diagnostic

and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) lists a six-

month or greater duration as a diagnostic criterion, but concluded that the

number of incidents in the three-week duration was sufficient to support the

diagnosis, given the nature of the acts. Id. at 10-12, 19-20, 23-27, 39-40.

The SOAB evaluator also opined that Appellant engaged in predatory behavior

and presents a risk of committing sex crimes, absent treatment and lifetime

counseling, basing these opinions on the fact that Appellant committed her

crimes in a caregiver relationship and on the nature of the disorder and the

nature of Appellant’s behavior. Id. at 6-7, 12-16.2 The SOAB evaluator

opined, based on these conclusions and factors, that Appellant met the criteria

to be classified as an SVP. Id. at 16-17.

Appellant’s expert opined that Appellant could not be diagnosed as

having other specified paraphilic disorder because the behavior did not persist

for six months or longer and that Appellant did not meet the criteria for

2 The SOAB evaluator also testified concerning the other factors set forth in SORNA, the mental capacity of Victim, which supported the SVP designation, and the fact that there was only a single victim, the absence of a past history of sexual crimes or abnormalities or of any criminal history other than a retail theft more than 35 years earlier, the absence of drug use, and Appellant’s and Victim’s ages, which did not weigh in favor of SVP status. N.T. SVP & Sentencing Hearing at 18-23.

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classification as an SVP because without that diagnosis, the requirement of a

mental abnormality or personality disorder was not satisfied. N.T. SVP &

Sentencing Hearing at 43-50. Appellant’s expert, however, conceded that

Appellant’s behavior was predatory, that Appellant met the diagnostic criteria

for a provisional diagnosis of other specified paraphilic disorder, a conclusion

that she could be diagnosed with that disorder if the behavior continued to

the point that it satisfied the six-month requirement, and that Appellant

should never be permitted to be a caregiver again. Id. at 50, 55-58.

The trial court found the testimony of the SOAB evaluator credible and

based its SVP determination on his testimony. Trial Court Opinion at 4-6.

Appellant argues that this testimony was insufficient to prove that she has a

mental abnormality or personality disorder and that she therefore could not

be found to be an SVP. We do not agree.

The SOAB evaluator diagnosed Appellant as suffering from the mental

abnormality of other specified paraphilic disorder, with the specifications of

non-consent, sadism, masochism, urophilia, coprophilia, and fetish. N.T. SVP

& Sentencing Hearing at 8. Although the six-month duration that DSM-5 lists

as a criterion in diagnosing other specified paraphilic disorder was not

satisfied, the SOAB evaluator explained that DSM-5 does not require that

duration where the acts are persistent and intense and that the frequency and

nature of Appellant’s sexual assaults showed persistence and intensity. Id.

at 9-12, 24-27, 39-40. Moreover, the fact that Appellant’s assaults continued

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for only three weeks was not due to Appellant losing interest in or choosing to

give up this behavior. The SOAB evaluator testified that Appellant’s conduct

ceased only because it was discovered and she was removed from caring for

Victim. Id. at 16. The SOAB evaluator’s testimony was therefore sufficient

to prove that Appellant suffers from a mental abnormality or personality

disorder that makes her likely to engage in predatory sexual offenses.

Appellant also argues that the SOAB evaluator’s testimony was

insufficient because it did not show that she is likely to reoffend. This fails for

two reasons. First, it is inaccurate. The SOAB evaluator testified that

Appellant’s mental abnormality, other specified paraphilic disorder, is

treatable, but not curable, and that individuals with that disorder are a risk to

reoffend even if they are in remission. N.T. SVP & Sentencing Hearing at 12-

14. The SOAB evaluator also opined that Appellant would continue to have

the urges that led to her crimes and that she has a likelihood of reoffending if

she has access to vulnerable individuals. Id. at 14-16.

Second, even if the evidence did not support the conclusion that

Appellant’s diagnosis makes her likely to reoffend, that would not make it

insufficient to support her SVP designation. As noted above, a finding that

the defendant is likely to reoffend is not a requirement for an SVP designation.

Hollingshead, 111 A.3d at 190, 194; Stephens, 74 A.3d at 1039. Rather,

it is only a factor that must be considered in evaluating whether the defendant

is an SVP and on which the Commonwealth’s expert must opine.

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Hollingshead, 111 A.3d at 190, 194; Stephens, 74 A.3d at 1038-39. That

requirement was satisfied here, as the SOAB evaluator testified that he

considered the likelihood that Appellant would reoffend and opined on that

likelihood. N.T. SVP & Sentencing Hearing at 12-16.

For the foregoing reasons, we conclude that the issue raised by

Appellant in this appeal lacks merit. We therefore affirm Appellant’s judgment

of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/01/2023

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