Commonwealth v. Fuentes

991 A.2d 935, 2010 Pa. Super. 36, 2010 Pa. Super. LEXIS 67, 2010 WL 937525
CourtSuperior Court of Pennsylvania
DecidedMarch 17, 2010
Docket817 EDA 2008
StatusPublished
Cited by65 cases

This text of 991 A.2d 935 (Commonwealth v. Fuentes) is published on Counsel Stack Legal Research, covering Superior 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 v. Fuentes, 991 A.2d 935, 2010 Pa. Super. 36, 2010 Pa. Super. LEXIS 67, 2010 WL 937525 (Pa. Ct. App. 2010).

Opinions

OPINION BY

STEVENS, J.:

¶ 1 This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County following Appellant’s negotiated guilty plea to the charges of aggravated indecent assault, 18 Pa.C.S.A. § 3125, and three counts of robbery, 18 Pa.C.S.A. § 3701(a)(1). On appeal, Appellant seeks review of the trial court’s determination that he is a sexually violent predator (SVP) under Megan’s Law.1 Specifically, Appellant contends the trial court erred in determining the Commonwealth proved by clear and convincing evidence that: (1) Appellant suffered from an antisocial personality disorder and (2) Appellant was “likely” to engage in future predatory sexual violence. We affirm.

¶ 2 The relevant facts and procedural history are as follows: On March 9, 2006, at approximately 8:00 p.m., Appellant, who was twenty-four years old, approached the sixteen-year-old victim, her sixteen-year-old sister, and her sister’s nineteen-year-old boyfriend in a threatening manner in the area of the 4100 block of M Street in Philadelphia. N.T. 5/30/07 at 12-13. All of the victims believed Appellant “might have a gun.” N.T. 5/30/07 at 13. Appellant took the sister’s boyfriend’s jacket, wallet, and day planner, and he removed from the sister’s pocket one dollar. N.T. 5/30/07 at 13. Appellant took the victim into an alley, which was right next to the sidewalk. N.T. 5/30/07 at 13. Appellant kissed the victim, fondled her vaginal area, exposed his penis, and forced her to touch it. N.T. 2/29/08 at 13. Appellant then pulled down the victim’s pants, inserted his finger into her vagina without her permission, and threatened to kill her if she reported the sexual assault. N.T. 5/30/07 at 13; N.T. 2/29/08 at 13. Appellant took the victim’s earrings and left the scene. [937]*937N.T. 5/30/07 at 13. Police subsequently-recovered the sister’s boyfriend’s jacket, which contained the victim’s earrings, and arrested Appellant.

¶ 3 On May 30, 2007, Appellant, who was represented by counsel, entered a negotiated guilty plea to the charges indicated supra, and on February 29, 2008, he proceeded to a Megan’s Law hearing and sentencing. During the hearing, the parties stipulated to the qualifications of Barbara Ellen Ziv, M.D., a member of the Sexual Offenders Assessment Board (the Board) who conducted the assessment in this case. N.T. 2/29/08 at 5-6.

¶ 4 On direct-examination, Dr. Ziv testified that she reviewed Appellant’s records, which were provided to the Board, and she completed a report on July 23, 2007. N.T. 2/29/08 at 8. Dr. Ziv noted that Appellant declined to be interviewed and the materials in this case consisted largely of police records. N.T. 2/29/08 at 12.

¶ 5 Dr. Ziv testified that Appellant has a mental abnormality or personality disorder, which makes it likely that he will engage in predatory behavior. Specifically, Dr. Ziv testified as follows:

[Appellant] met the criteria of both of these arms of the statute. In terms of predatory behavior, he pled guilty to aggravated assault — aggravated indecent assault. He had no previous relationship with the victim, and clearly that meets the criteria for predatory behavior in that he initiated this relationship for the purpose of sexual victimization.
In addition, [Appellant] meets the criteria for antisocial personality disorder. The criteria for antisocial personality disorder as defined by the DSM-IV are as follows. [A], pervasive pattern of disregard for and violation of the rights of others occurring since the age 15 years, as indicated by three or more of the following.
One, failure to conform to social norms with respect to lawful behaviors as indicated by repeatedly performing acts that are grounds for arrest. [Appellant’s] criminal arrest history began when he was 12 years old and has continued into adulthood.
Two, deceitfulness, as indicated by repeated lying, use of aliases or conning others for personal profit or pleasure. [Appellant] has a history of using aliases. He has used Jose Gonzalez and Barry Gonzalez in the past when he was arrested.
[Three,] [i]mpulsivity or failure to plan ahead. [Appellant’s] life has been characterized by impulsivity with respect to his unlawful behaviors.
Four, irritability and aggressiveness, as indicated by repeated physical fights or assaults. I do not have information about this particular symptom.
Reckless disregard for safety of others. [Appellant’s] conviction for aggravated indecent assault indicates such disregard.
Consistent irresponsibility as indicated by repeated failure to sustain consistent work behavior or honor financial obligations. Although his complete work employment is not known, he was reportedly employed at the Washington Distribution Center at the time of his arrest.
Lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated or stolen from another. I don’t have any information about this.
[B], the individual is at least 18 years old. [Appellant] was 24 years old at the time of the indecent assault of [the victim].
There’s evidence of conduct disorder before age 15. [Appellant] was adjudicated delinquent at age 12.
[938]*938The occurrence of antisocial behavior is not exclusively during the course of schizophrenia or manic episode and there is no evidence that [Appellant] was acutely psychotic or manic at the time of this assault.

N.T. 2/29/08 at 9-11.

¶ 6 Dr. Ziv opined, to a reasonable degree of psychiatric certainty, that Appellant is a SVP for Megan’s Law purposes. N.T. 2/29/08 at 11. Dr. Ziv noted that the nature of the instant crime was predatory. N.T. 2/29/08 at 13. She revealed that Appellant has three arrests as a juvenile, including at ages twelve, sixteen, and seventeen. N.T. 2/29/08 at 14. The charges included robbery, theft, receiving stolen property, simple assault, reckless endangerment, criminal conspiracy, and unauthorized use of an automobile. N.T. 2/29/08 at 14. As a juvenile, Appellant failed to appear in court on one occasion and he violated his probation on another occasion. N.T. 2/29/08 at 14. Despite being committed to a juvenile facility, Appellant was arrested three times as an adult prior to the crimes at issue. N.T. 2/29/08 at 15. Specifically, at age nineteen, Appellant pled guilty to possession with the intent to deliver a controlled substance, and he violated his probation three times with regard thereto. N.T. 2/29/08 at 30. At age twenty, Appellant was arrested for robbery; however, the victim failed to appear and the case was discharged. N.T. 2/29/08 at 31. Also, at age twenty, Appellant was arrested in connection with a stolen automobile; however, the Commonwealth declined to prosecute. N.T. 2/29/08 at 31.

¶ 7 Dr. Ziv explained that Appellant’s criminal history is indicative of his personality disorder. N.T. 2/29/08 at 15. Specifically,

[H]e has a wide variety of criminal acts. His acts began when he was 12. He was adjudicated delinquent.

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Cite This Page — Counsel Stack

Bluebook (online)
991 A.2d 935, 2010 Pa. Super. 36, 2010 Pa. Super. LEXIS 67, 2010 WL 937525, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-fuentes-pasuperct-2010.