Commonwealth of Pennsylvania v. Dengler

890 A.2d 372, 586 Pa. 54, 2005 Pa. LEXIS 3208
CourtSupreme Court of Pennsylvania
DecidedDecember 30, 2005
Docket104 MAP 2004
StatusPublished
Cited by94 cases

This text of 890 A.2d 372 (Commonwealth of Pennsylvania v. Dengler) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth of Pennsylvania v. Dengler, 890 A.2d 372, 586 Pa. 54, 2005 Pa. LEXIS 3208 (Pa. 2005).

Opinions

OPINION

Justice CASTILLE.

This appeal poses a discrete evidentiary issue of first impression arising out of the operation of Megan’s Law II:1 [56]*56whether the opinion testimony of an expert witness at a hearing to determine if an offender is a sexually violent predator (“SVP”), and is therefore subject to the registration and notification provisions of Megan’s Law II, is subject to the Pennsylvania test of admissibility for novel scientific testimony derived from Frye v. United States, 293 F. 1013 (D.C.Cir. 1923). The Superior Court held that such testimony is not subject to the Frye test as it does not involve novel scientific evidence. We agree and therefore affirm.

On April 27, 2001, the then-thirty-four-year-old appellant was at home with his twelve-year-old niece, R.K. The child was in appellant’s bedroom watching a movie when appellant entered the room and locked the door behind him. He sat with R.K. for a period of time and then removed her pants and underwear, over the' child’s resistance. The child, however, successfully resisted appellant’s attempt to remove her shirt and brassiere. Appellant fondled and kissed R.K.’s breasts over her clothing, fondled her vagina, inserted his finger in her vagina, and performed oral sex on her. The assault was interrupted only when the child’s mother knocked on the bedroom door. Appellant opened the door and fled, leaving the child on the bed, naked from the waist down.

Appellant pleaded guilty pursuant to a negotiated plea agreement to one count each of aggravated indecent assault, 18 Pa.C.S. § 3125(a)(7), and corruption of minors. Id. § 6301(a). The Honorable Thomas J. Eshelman directed the State Sexual Offenders Assessment Board (“the Board”) to perform an SVP assessment of appellant under Megan’s Law II. By way of background, the registration and notification provisions of Megan’s Law II apply to qualifying “offenders” and “sexually violent predators.” Under the statute, an offender convicted of a qualifying predicate crime is required to register with the Pennsylvania State Police; where the offense is aggravated indecent assault, as here, the offender is subject to lifetime registration. 42 Pa.C.S. § 9795.1(b). The statute also directs that, after conviction but before sentencing for an offense subject to the registration requirement, the trial court is required to order an assessment by the Board to determine [57]*57if the offender should be classified as an SVP. Id. § 9795.4. After the report issues, and upon praecipe filed by the Commonwealth, the court must then schedule a hearing to determine SVP status. At the hearing, both the accused and the Commonwealth have the right to be heard and to call and ci'oss-examine witnesses, including expert witnesses. The Commonwealth has the burden of proving to the court, by clear and convincing evidence, that the defendant is an SVP. Id. Those adjudicated by the court as SVPs are subject to additional measures; for example, among other things, the statute directs the State Police to notify neighbors, as well as day care centers and school officials within the municipality, of the SVP’s presence in the community. Id. §§ 9797-98.2

The Act defines a “sexually violent predator,” in relevant part, as “[a] person who has been convicted of a sexually violent offense as set forth in section 9795.3 (relating to registration) and who is determined to be a sexually violent predator under section 9795.4 (relating to assessments) due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.” Id. § 9792. The Act defines “predatory” as “[a]n act 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 facilitate or support victimization.” Id. Section 9795.4 directs that the Board, in order to facilitate SVP assessments, “establish standards for evaluations and for evaluators conducting the assessments.” Id. § 9795.4(b). The Section further provides that:

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.
[58]*58(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.
(8) Characteristics of the individual, including:
(i) Age of the individual.
(ii) Use of illegal drugs by the individual.
(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 assess-, ment field as criteria reasonably related to the risk of reoffense.

Id. § 9795.4(b).3

In response to the court’s order, the Board issued a written Sex Offender Evaluation prepared by Board Member Veronique N. Valliere, a licensed psychologist with a doctoral degree in clinical psychology, which concluded that appellant met the statutory criteria for classification as an SVP. In her report, Dr. Valliere noted that a Board Investigator had attempted to interview appellant for purposes of the assessment, but he declined to cooperate. The report also noted the sources Dr. Valliere had consulted in rendering her evaluation, [59]*59which included court records, the probable cause affidavit, and court records relating to two prior sexual offenses appellant committed upon minors: one of which resulted in a guilty plea to the 1991 statutory rape of a thirteen-year-old girl; and the second of which, arising in February 2001 and involving a fifteen-year-old girl, was an open matter at the time of the instant offense. The records also revealed that appellant had suffered a head injury in the past, that he had engaged in other criminal behavior not involving sexual assault (multiple thefts, unsworn falsification, driving under the influence), and that he had a history of drug and alcohol abuse. Sex Offender Evaluation, 1-4; N.T. 7/18/02, 71-74.4

In her written analysis, Dr. Valliere stressed, inter alia,

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Bluebook (online)
890 A.2d 372, 586 Pa. 54, 2005 Pa. LEXIS 3208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-of-pennsylvania-v-dengler-pa-2005.