Commonwealth v. Gamelli

2 Pa. D. & C.5th 27
CourtPennsylvania Court of Common Pleas, Bucks County
DecidedNovember 19, 2007
Docketno. 6487/2006
StatusPublished

This text of 2 Pa. D. & C.5th 27 (Commonwealth v. Gamelli) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bucks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Gamelli, 2 Pa. D. & C.5th 27 (Pa. Super. Ct. 2007).

Opinion

CEPPARULO, J.,

I. INTRODUCTION

On September 7, 2007, Robert Gamelli (defendant) filed a notice of appeal from this court’s August 17,2007 judgment of sentence and determination that he met the criteria to be declared a sexually violent predator. We file this opinion in accordance with Pennsylvania Rule of Appellate Procedure 1925(a).

II. FACTUAL AND PROCEDURAL HISTORY

On March 5, 2007, defendant pled guilty to criminal attempt to commit rape of a child,1 criminal attempt to commit statutory sexual assault,2 involuntary deviate sexual intercourse with a person less than 13 years of age,3 criminal attempt to commit aggravated indecent assault of a person less than 13 years of age,4 indecent assault of a person less than 13 years of age,5 and corruption of a minor.6 The Honorable Kenneth G. Biehn accepted defendant’s guilty plea, but deferred sentencing until after an assessment by the State Sexual Offenders Assessment Board. On May 13, 2007, the board issued [29]*29its report, recommending that defendant be classified as a sexually violent predator (SVP).

On August 17,2007, this court held a hearing to determine whether to classify defendant as a SVP. The assistant district attorney and defense counsel agreed to a stipulated SVP hearing, and this court admitted the notes of testimony from defendant’s guilty plea (March notes), the curriculum vitae (CV) for Dean Dickson, the Commonwealth’s expert, and the Sexual Offenders Assessment Board Report into evidence. N.T., 9/11/07, p. 4. Both the March notes and the board report recounted defendant’s extensive sexual abuse of his 12-year-old step-granddaughter, BG, which occurred on more than 20 separate occasions over an 11-month period from August 2005 until July 2006. Id. at 12-15. The abuse included reciprocal acts of oral sex, the fondling of the victim’s vaginal area, attempts at digital and penile penetration, and masturbation, with ejaculation, in front of the victim. Id. Defendant showed the victim pornography and attempted to take naked photos of the victim. Id. at 14. After each incident defendant gave the victim money. Id.

On one occasion, in August of 2005, the victim went to bed wearing pajamas, but at the request of defendant did not wear any underwear. Id. at 13. Later that night the victim awoke in defendant’s bed, naked. Id. Defendant climbed on top of the victim and performed oral sex on her. Id. He fondled her vaginal area and unsuccessfully attempted digital penetration. Id. Defendant masturbated in front of her, and asked if he could put his ejaculate into her mouth or on her genitals. Id. The victim was required to perform oral sex on defendant. Id. at 14.

[30]*30Disturbingly, appellant told police that the victim allegedly instigated the sexual contact by entering his bedroom at night saying she was scared, taking off her own clothes, getting into his bed, and “riding him”. Id. He claimed the victim wanted him to rub her vaginal area. He also accused the victim of being manipulative and said that the victim knew what she was doing. Id., see also, board report at 6.

Defendant admitted having “urges” for the two years leading up to the instant abuse, following his wife’s death, and that he had similar “urges” approximately 22 years before when he sexually assaulted his stepdaughter SG. Id. at 15. Defendant’s assaults against SG began in the 1980s, when SG was 12, and lasted for approximately 10 years ending in the 1990s. Id. at 15-16. SG wrote a statement stating that the abuse started at age 12 with defendant touching her and surreptiously watching her in the shower. Thereafter, defendant forced her to perform oral sex on him, after which he gave her $5 and that, at age 16, defendant began to regularly rape her, forcibly penetrating her vagina with his penis. Id. at 17. Defendant would also let SG borrow money and would initiate sexual contact as repayment. Id. at 16. Defendant admitted that he was arrested for the assaults against SG, but the charges were dropped when SG refused to testify against him. Id. The report of Dr. Allan Tepper, defendant’s psychologist, confirms that defendant received outpatient treatment for his “urges” related to the assaults against SG. Tepper report at 5; see also, board report at 7.

In addition, there were indications that defendant abused his other stepchildren as well. PH, BG’s mother, indicated that defendant sexually assaulted her, starting [31]*31at age 12. N.T., 9/11/07 at 16. PH said that defendant would digitally penetrate her while she was in the bath, and that he would perform oral sex on her to make sure she “was clean”. Id. PH indicated that when she tried to fight back defendant would beat her. Id. Two other stepdaughters and a stepson, SG (2), LN, and MG, also indicated that they were victims of sexual abuse by defendant. Id. at 17-18.

With regard to his own sexual history, defendant alleged that he was the victim of sexual assault on three separate occasions. Id. at 20. The first time was when he was 9, involving a man in his car. Board report at 4. The second time involved his grandfather when he was young. Id. The third incident occurred at age 18 when he was in the military and was sexually assaulted by a superior officer. Id. Defendant is 64 years old.

III. MATTERS COMPLAINED OF ON APPEAL

Defendant raises five matters complained of on appeal set forth verbatim below:

“(1) The sexually violent predatory designation is not supported by sufficient evidence because the Commonwealth failed to establish by clear and convincing evidence that appellant is likely to engage in predatory sexually violent offenses.
“(2) The sexually violent predatory designation is not supported by sufficient evidence because the Commonwealth failed to establish by clear and convincing evidence that appellant’s actions were predatory.
“(3) The lack of meaningful judicial reviewability of a sexually violent predator finding renders Pennsylva[32]*32nia’s Megan’s Law III unconstitutionally overbroad and excessive.
“(4) The review provisions of sexually violent predator determination contained in Pennsylvania’s Megan’s Law III are unconstitutional because they place the burden upon the appellant.
“(5) Megan’s Law III is unconstitutionally vague.”

This court will address defendant’s challenges to the sufficiency of the evidence for this court’s SVP determination, Matters (1) and (2), together. We will also address defendant’s constitutional challenges to the Registration of Sexual Offenders Act, 42 Pa.C.S. §9791 et seq., commonly known as Megan’s Law III, as set forth in Matters (3), (4), and (5), together.

IV. ANALYSIS OF MATTERS

Sufficiency of the Evidence, Matters (1) and (2)

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Bluebook (online)
2 Pa. D. & C.5th 27, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-gamelli-pactcomplbucks-2007.