Opinion
1967 EDA 2022 J-A01026-23
05-08-2023
COMMONWEALTH OF PENNSYLVANIA v. JOSEPH H. CAMBURN III, Appellant
Joseph D. Seletyn, Esq. Prothonotary Sarah Kuethe, Esq. Attorney for Commonwealth Keith Williams, Esq. Attorney for Defendant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered July 19, 2022 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0002912-2021
Joseph D. Seletyn, Esq. Prothonotary
Sarah Kuethe, Esq. Attorney for Commonwealth
Keith Williams, Esq. Attorney for Defendant
BEFORE: LAZARUS, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM
NICHOLS, J.
Appellant Joseph H. Camburn III appeals from the judgment of sentence imposed after he pled guilty to possessing child pornography and criminal use of a communication facility. Appellant argues that the trial court erred in determining that he was a sexually violent predator (SVP). Following our review, we affirm on the basis of the trial court opinion.
We note that although Appellant listed his name as "Joseph Camburn" on the notice of appeal, the trial court docket includes Appellant's full name, "Joseph H. Camburn III." Therefore, we have amended the caption to reflect Appellant's name as it was listed on the trial court's docket. See Pa.R.A.P. 904(b)(1) (stating that "[t]he parties shall be stated in the caption as they appeared on the record of the trial court at the time the appeal was taken").
18 Pa.C.S. §§ 6312(d) and 7512(a), respectively.
The trial court summarized the underlying facts of this matter as follows:
This case arises out of a report to law enforcement from Twitter that a certain user had uploaded numerous images of sexual
exploitative material of children using the Twitter platform on or about January 28, 2021. Through investigation, Detective Dante Montella of the Bucks County District Attorney's Office was able to identify Appellant as the account holder and made contact with him on March 19, 2021. At this time, Detective Montella took possession of Appellant's cell phone, Appellant confirmed that the Twitter account in question, "Countryboy4110," was his, provided the detective with his cell phone number, and admitted to possessing child pornography.Trial Ct. Op., 9/20/22, at 1.
On December 3, 2021, Appellant entered an open guilty plea to possessing child pornography and criminal use of a communication facility. The trial court deferred sentencing for the Sexual Offenders Assessment Board (SOAB) to determine whether Appellant was an SVP. On July 19, 2022, the trial court conducted an SVP hearing. At the hearing, the Commonwealth presented SOAB expert Stephen Pflugfelder, who concluded that Appellant met the criteria for an SVP pursuant to the Sexual Offenses Reporting and Notification Act (SORNA II). At the conclusion of the hearing, the trial court designated Appellant as an SVP. That same day, the trial court sentenced Appellant to a term of two-to-five-years' imprisonment for possessing child pornography and a concurrent term of five years' probation for criminal use of a communication facility. Appellant did not file post sentence motions.
42 Pa.C.S. §§ 9799.10-9799.42.
Appellant filed a timely notice of appeal. Both Appellant and the trial court complied with the requirements of Pa.R.A.P. 1925.
Appellant's notice of appeal did not indicate the date of the order or judgment being appealed. See Notice of Appeal, 7/27/22. After this Court issued a rule to show cause order, Appellant filed a response stating that he intended to appeal from the judgment of sentence imposed on July 19, 2022. Accordingly, the rule is discharged, and we have amended the caption accordingly.
On appeal, Appellant raises the following issue for our review:
Did the lower court err in making a finding that the Commonwealth had met its burden of proving that Appellant was [an SVP] pursuant to 42 Pa.C.S. § 9799[.24]?Appellant's Brief at 4 (formatting altered).
Initially, Appellant concedes that he has a mental abnormality or personality disorder. Id. at 11. However, Appellant argues that he does not meet the statutory criteria for an SVP because the Commonwealth failed to establish that he engaged in predatory behavior. Id. In support, Appellant alleges that Mr. Pflugfelder "could not point [to] any conduct by Appellant that was predatory in a sexual way." Id. at 17 (citing N.T. SVP Hr'g, 7/19/22, at 40-43, 46-47, 50, 53, 55). Further, Appellant claims that his prior convictions for terroristic threats and harassment were not relevant to the SVP determination because the underlying allegations were "never proven to a 'clear and convincing' standard." Id. at 17-18. Appellant also argues that Mr. Pflugfelder erroneously relied on other allegations that were never adjudicated, including a juvenile offense concerning an obscene phone call and a report from Bucks County Children and Youth Services (CYS) in which Appellant was alleged to have taken sexually suggestive photographs of children who were under his care. Id. at 15-17. For these reasons, Appellant concludes that there was insufficient evidence that he engaged in the predatory behavior necessary to support an SVP determination. Id. at 18-19.
We review an SVP designation to determine whether the Commonwealth presented clear and convincing evidence that the defendant meets the statutory definition of an SVP. Commonwealth v. Hollingshead, 111 A.3d 186, 189 (Pa. Super. 2015). "As with any sufficiency of the evidence claim, we view all evidence and reasonable inferences therefrom in the light most favorable to the Commonwealth [as verdict winner]." Id. (citation omitted).
To prove a defendant is an SVP, the Commonwealth must first establish that the defendant was convicted of a sexually violent offense. Then the Commonwealth must prove that the defendant has "a mental abnormality or personality disorder that makes [them] likely to engage in predatory sexually violent offenses." 42 Pa.C.S. § 9799.12. The statute defines "mental abnormality" 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. The defendant's conduct must be "predatory," which the statute defines as "[a]n act directed at a stranger or at a person with whom a relationship has been instituted, established, maintained, or promoted, in whole or in part, in order to facilitate or support victimization." Id.; Commonwealth v. Stephens, 74 A.3d 1034, 1038 (Pa. Super. 2013); see also Commonwealth v. Geiter, 929 A.2d 648, 651 (Pa. Super. 2007).
In determining whether an individual meets the definition of an SVP, the SOAB evaluates the following 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.
(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).
Here, Appellant claims that there was insufficient evidence that his conduct was "predatory" for purposes of the SVP determination. In its Rule 1925(a) opinion, the trial court addressed Appellant's claim as follows:
[A]n act is predatory when the act is "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." 42 Pa.C.S. § 9799.12. Furthermore, the statutory definition of "predatory" contains no requirement that Appellant engaged in predatory behavior in the instant offense. See Commonwealth v. Fletcher, 947 A.2d 776, 776 (Pa. Super. 2008). Rather, the requirement is that the offender is likely to engage in predatory behavior, regardless of whether the offense at issue was predatory itself. See id.; see also [Commonwealth v. Feucht, 955 A.2d 377, 381 (Pa. Super. 2008) ].
Mr. Pflugfelder opined that Appellant has engaged in predatory behavior in the past, although he stated his belief that [] neither the possession of child pornography nor masturbation to the same is "predatory behavior" for the purposes of [an] SVP designation. N.T. SVP Hr'g at 53-55. Mr. Pflugfelder based this opinion on the definition provided by the statute and opined that Appellant's prior conviction in 2002 for terroristic threats in which Appellant made an obscene phone call to a stranger[/]victim, constituted predatory behavior as defined in the statute. Id. at 40, 53-55. Appellant was convicted of harassment in 2006, which according to the records of Bucks County Adult Probation, was for making a "fraudulent and malicious phone call to 911." Id. at 56.
Appellant's three convictions: terroristic threats resulting from an obscene phone call, his harassment conviction for the fraudulent and malicious phone call to 911, and the instant conviction for child pornography and criminal use of a communication facility have an important commonality. In each instance Appellant targeted a stranger. Be it the obscene phone call, the 911 call, or when he uploaded "obvious child sexual exploitative material" to
the website Twitter.com, each of these acts were directed to a victim that Appellant did not know. Moreover, during an investigation by [CYS] separate from the instant offense, Appellant admitted to masturbating to videos of children he personally knew. Id. at 35-36. In light of this information, Mr. Pflugfelder found that Appellant had initiated a relationship in part or in whole to facilitate victimization. As a result, Appellant has engaged in predatory behavior that has both been directed to a stranger[/] victim and to an individual to whom he had initiated a relationship in part or in whole to facilitate victimization.
Under the statue, the SOAB assessor conducting [an] SVP assessment is required to examine certain statutory indicators. These indicators signal the likelihood of future offenses, and are not factors to be weighed against each other. The presence of factors is the relevant analysis, factors that are not present or inapplicable to the current facts do not count against a conclusion that [Appellant] is [an] SVP. Of the [fourteen] listed statutory sub-indicators, six of them were found present, two were not found present, and six were found to be unsuited for Appellant's assessment. This court found that (i) the offense involved multiple victims, (ii) the children victims depicted in the child sexual exploitative material were of very tender age, (iii) Appellant's prior criminal record counseled for a finding of SVP status, (iv) Appellant had completed his prior sentences, (v) the fact that Appellant had already completed sexual offender treatment and subsequently reoffended, and (vi) Appellant's behavioral characteristics made it likely that he would continue to offend. This court found that (a) Appellant had no relationship with the victims for the instant offense, and (b) that Appellant's commission of the offense did not involve him displaying unusual cruelty. Id. at 62-77.
In sum, Mr. Pflugfelder concluded that "[Appellant] has engaged in sexually inappropriate behaviors over the course of his life that would suggest a sexual behavior problem" and "based on his mental abnormality and engaging in predatory behavior, he's likely to reoffend." Id. at 36-37 . . . .
Nor can Appellant's additional behavior be ignored. He admitted to [CYS] that he has been attracted to children since before he was [twelve] years old, and had advanced beyond mere fantasy, to the consumption of child pornography, to taking photographs
of the clothed buttocks, bare legs, and bare feet of prepubescent children for whom he was in a caretaking role. This type of escalating behavior is deeply concerning and strongly suggests that Appellant is likely to engage in predatory sexually violent behavior in the future.
Based on Appellant's prior convictions, which involved predatory behavior, along with Appellant's behavior of covertly taking photographs of young female children he was babysitting, and the violent, cruel nature of the pornographic files found on Appellant's devices, this court was satisfied that the Commonwealth, through Mr. Pflugfelder, presented clear and convincing evidence as to not only Appellant's mental abnormality, but also as to the presence of predatory behavior. This court is also satisfied that Mr. Pflugfelder thoroughly considered the requisite statutory factors listed in 42 Pa.C.S. § 9799.24(b) as they relate to the circumstances surrounding the instant case. Mr. Pflugfelder assessed and pointed to several statutory factors that increased Appellant's likelihood of reoffending, such as the age of the victims depicted in the child pornography being prepubescent, the fact that Appellant had been investigated in the past [by CYS] for allegedly looking at the intimate parts of one of the children Appellant was in a caregiving role with, and the fact that Appellant previously completed sex offender treatment back in 2004. N.T. SVP Hr'g at 36, 48. Mr. Pflugfelder testified that the fact that Appellant had previously undergone treatment and then reoffended afterward is more concerning than if Appellant had never undergone sex offender treatment. Id. at 48.Trial Ct. Op. at 9-13 (some citations omitted, formatting altered).
On this record, viewing the evidence in the light most favorable to the Commonwealth, we agree with the trial court that there was sufficient evidence establishing that Appellant engaged in predatory conduct. See Hollingshead, 111 A.3d at 189. We agree with the trial court's analysis of the evidence presented at the SVP hearing, including Mr. Pflugfelder's testimony that the trial court found credible and supported by the record which described Appellant's history of predatory behavior. See N.T. SVP Hr'g at 60-77; see also Trial Ct. Op. at 8. Therefore, Appellant's challenge to the SVP determination is meritless, and no relief is due. See Stephens, 74 A.3d at 1038. For these reasons, we affirm on the basis of the trial court's opinion.
Judgment of sentence affirmed.
Judgment Entered.
OPINION
Appellant Joseph Camburn, III appeals from this Court's July 20, 2022, determination that Appellant is a Sexually Violent Predator ("SVP"). Appellant filed this appeal on July 27, 2022. The Court files this opinion in accordance with Pa.R.A.P. 1925(a).
PROCEDURAL BACKGROUND
This case arises out of a report to law enforcement from Twitter that a certain user had uploaded numerous images of sexual exploitative material of children using the Twitter platform on or about January 28, 2021. Through investigation, Detective Dante Montella of the Bucks County District Attorney's Office was able to identify Appellant as the account holder and made contact with him on March 19, 2021. At this time. Detective Montella took possession of Appellant's cell phone. Appellant confirmed that the Twitter account in question, "Countryboy4110", was his, provided the detective with his cell phone number, and admitted to possessing child pornography.
Appellant was subsequently charged as follows: Count 1, Child Pornography, a felony of the third degree; and Count 2, Criminal Use of a Communication Facility, a felony of the third degree. On December 3, 2021, Appellant entered a guilty plea to both counts and sentencing was deferred for the Sexual Offenders Assessment Board ("SOAB") to perform an assessment pursuant to 42 Pa.C.S. § 9799.58. On December 14, 2022, a hearing to determine Appellant's status as a SVP was scheduled for March 14, 2022. On March 18, 2022, this Court issued an order rescheduling the hearing for April 25, 2022. On May 5, 2022, this Court issued an Order rescheduling the hearing for July 19, 2022.
On July 19, 2022, the hearing was conducted and the Commonwealth presented the testimony of SOAB expert Stephen Pflugfelder. Mr. Pflugfelder testified that Appellant's behaviors are consistent with a diagnosis of pedophilia, a congenital or acquired condition. Transcript of Proceedings, July 19, 2022 ("N.T.") pp. 17-18. Pedophilia is a lifetime condition and "individuals who are aroused by children who are consistent with a pedophilic diagnosis would be an increased likelihood of reoffending." N.T. pp. 22-24. Mr. Pflugfelder also testified that Appellant has "engaged in sexually inappropriate behaviors over the course of his life that would suggest a sexual behavior problem," and that Appellant's actions met the criteria for predatory behavior. N.T. pp. 36; 25-26. Mr. Pflugfelder also found that Appellant had initiated a relationship in part or in whole to facilitate victimization. C-2 p. 6. Mr. Pflugfelder testified that, in sum, Appellant met the criteria of a sexually violent predator due to having a mental abnormality or disorder that makes him likely to engage in predatory sexually violent offenses. N.T. pp. 37-38; see C-2.
At the conclusion of the hearing this Court found, consistent with Mr. Pflugfelder's report and testimony, that Appellant was a Sexually Violent Predator. N.T. pp. 60-77. This Court then sentenced Appellant on Count 1 to a term of incarceration in a state correctional institute of not less than two (2) years nor more than five (5) years, and on Count 2 to a term of state probation of five (5) years to run consecutive to the sentence imposed on Count 1.
MATTERS COMPLAINED OF ON APPEAL
This Court determined that Appellant was a Sexually Violent Predator and sentenced Appellant on July 19, 2022. Appellant filed a timely Notice of Appeal on July 27, 2022. On that same day, July 27, 2022, Appellant also filed a Concise Statement of Matters Complained of on Appeal, which raises the sole issue verbatim:
The trial court erred in finding that the defendant qualifies as a Sexually Violent Predator.
DISCUSSION
"The process of determining SVP status is statutorily mandated and well defined, with the triggering event being a conviction for one or more offenses specified in [42 Pa.C.S. Section 9799.14]." Commonwealth v. Baker. 24 A.3d 1006, 1029 (Pa.Super. 2011). After an individual has been convicted of or pled guilty to an offense outlined in 42 Pa.C.S. Section 9799.14, the trial court must order an assessment to be completed by the SOAB for the purposes of determining whether the individual in question meets the criteria to be designated as a SVP. See 42 Pa.C.S. § 9799.24.
Pursuant to the statute, a SVP is defined as "an individual who committed a sexually violent offense...specified in [Section 9799.14] due to a mental abnormality or personality disorder that makes the individual likely to engage in predatory sexual offenses." 42 Pa.C.S. § 9799.12. To show that an offender suffers from a mental abnormality or personality disorder pursuant to the statute, the evidence must show that the offender has "[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." Id. For the purpose of the statute, an individual's conduct is predatory if it is "[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.
When performing a SVP assessment, the mental health professional is required by statute to consider the following factors when making his or her determination as to whether an individual should be classified as a SVP:
(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.
(4) Factors that are supported in a sexual offender assessment field as criteria reasonably related to the risk of re-offense.42 Pa.C.S. §9799.24(b). "Furthermore, in reaching a determination [as to whether an individual meets the SVP criteria], [the trial court] must examine the driving force behind the commission of these acts, (along with) looking at the offender's propensity to re-offend, an opinion about which the Commonwealth's expert is required to opine." Commonwealth v. Stephens, 74 A.3d 1034, 1038-39 (Pa.Super. 2013) (citing Commonwealth v. Fuentes, 991 A.2d 935,943 (Pa.Super. 2010)). The Superior Court has articulated additional guidance, as follows:
[W]ith regard to the various assessment factors listed in Section [9799.24], there is no statutory requirement that all of them or any particular number of them be present or absent in order to support an SVP designation. The factors are not a checklist with each one weighing in some necessary fashion for or against SVP designation. Rather, the presence or absence of one or more factors might simply suggest the presence or absence of one or more particular types of mental abnormalities.
Thus, while the Board is to examine all the factors listed under Section [9799.24], the Commonwealth does not have to show that any certain factor is present or absent in a particular case. Rather, the question for the SVP court is whether the Commonwealth's evidence, including the Board's assessment, shows that the person convicted of a sexually violent offense has a mental abnormality or disorder making that person likely to engage in predatory sexually violent offenses.Commonwealth v. Feucht. 955 A.2d 377, 381 (Pa.Super. 2008) (internal citations omitted).
Upon the completion of the SOAB's SVP assessment in a given case, the trial court will hold a hearing pursuant to 42 Pa.C.S. §9799.24(e). During this hearing, the following procedure applies:
The individual and district attorney shall be given notice of the hearing and an opportunity to be heard, the right to call witnesses, the right to call expert witnesses and the right to cross-examine witnesses. In addition, the individual shall have the right to counsel and to have an attorney appointed to represent the individual if the individual cannot afford one. If the individual requests another expert assessment, the individual shall provide a copy of the expert assessment to the district attorney prior to the hearing.42 Pa.CS. §9799.24(e)(2).
"At the SVP hearing, the Commonwealth has the burden of proving by clear and convincing evidence that the person meets the criteria to be designated as a SVP." Stephens, 74 A.3d at 1039; see also 42 Pa.C.S. § 9795.4(e)(3). "This burden of proof has been described as an intermediate test, falling below the highest level of proof, beyond a reasonable doubt, but above the preponderance of the evidence standard." Stephens, 74 A.3d at 1039 (citing Commonwealth v. Meals. 912 A.2d 213, 219 (Pa. 2006)). Moreover, "[e]vidence will meet this level of proof if it is so clear, direct, weighty, and convincing as to enable the [trier of fact] to come to a clear conviction, without hesitancy, of the truth of the precise facts at issue." Id. The standard has also been described as
... [T]he witnesses must be found to be credible, that the facts to which they testify are distinctly remembered and the details thereof narrated exactly and in due order, and that their testimony is so clear, direct, weighty and convincing as to enable the jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue[.] It is not necessary that the evidence be uncontradicted, provided it "carries conviction to the mind", or "carries a clear conviction of its truth".Brodia v. Traveler's Ins. Co.. 175 A. 492,494 (Pa. 19341: see also In re Estate of Fickert, 337 A.2d 592, 594 (Pa. 1975); In re La Rocca Trust. 192 A.2d 409, 413 (Pa. 1963).
1. The Commonwealth Presented Clear and Convincing Evidence to Establish that Appellant meets the Statutory Criteria to be Classified as a Sexually Violent Predator.
As outlined above, for an individual to meet the criteria of a SVP, the Commonwealth must show clear and convincing evidence that (1) the individual has a mental abnormality or personality disorder that makes the individual likely to engage in predatory sexual behavior and (2) the presence of predatory behavior. In the instant case, this Court found that the Commonwealth clearly and convincingly met its burden of establishing that Appellant met the statutory criteria to be classified as a SVP pursuant to Pennsylvania statutory and decisional law.
a. Appellant's Mental Abnormality
At the SVP hearing on July 19, 2022, Stephen Pflugfelder testified as an expert in the assessment of adult sexual offenders. N.T. p. 10. Mr. Pflugfelder testified that he had performed approximately 35 assessments for the SOAB, with approximately 8 to 10 resulting in a conclusion that an individual meets the criteria of a SVP. N.T. pp. 8-9. His testimony largely relayed the information and opinion contained in his written SVP evaluation and addendum which were offered and accepted into evidence as Exhibits C-2 and C-3. N.T. p. 30. In his report and accompanying testimony, Mr. Pflugfelder conducted a thorough review of all relevant aspects of Appellant's background, the facts of the instant case, and the factors enumerated in 42 Pa.C.S. § 9799.24(b). Appellant did not participate in the assessment; however, Mr. Pflugfelder testified that Appellant's lack of participation did not impact his ability to adequately review and come to an opinion on whether Appellant met the criteria to be classified as a SVP. N.T. p. 12.
Certain statements made by Mr. Pflugfelder at the July 19,2022 hearing were objected to as having been based on "mere allegations that are hearsay, not founded or proven in some other way pursuant to Commonwealth v. Aumick, Superior Court 2022." N.T. p. 19. The aforementioned case, Commonwealth v. Aumick. 2022 PA Super 33 (Feb. 23, 2022), was ordered withdrawn by Commonwealth v. Aumick, No. 1529 EDA 2020 (Pa.Super., May 6, 2022) (per curiam).
Based on his review of the record, Mr. Pflugfelder opined, to a reasonable degree of professional and psychological certainty, that Appellant met the diagnostic criteria for mental abnormality/personality disorder, specifically pedophilic disorder. N.T. pp. 17, 38; see also C-2. Pedophilia is a disorder of sexual attraction to prepubescent children that extends for more than six months. N.T. p. 17. Mr. Pflugfelder explained that while the expressions and symptoms may wax and wane over time, pedophilia is a lifetime condition. N.T. p. 23. In this case, Appellant uploaded child pornography to Twitter and law enforcement uncovered 1,123 visually unique images and/or videos depicting known child pornography on his phone. Further, Appellant also admitted to law enforcement to possessing child pornography over many years and having masturbated to images of children. C-2 p. 2. The child pornography discovered on Appellant's devices contained, among other images and videos, a file of a toddler with their naked buttocks exposed and an adult penis between the child's legs/buttocks, an image of a white female toddler fully naked on her back, with a condom wrapper placed by her head and adult erect penis touching the child's anus, vagina, and hand, and a video a young white male under the age of eighteen naked with his arms and legs bound behind his back when an adult male enters the frame and places his erect penis in the child's mouth. N.T. p. 63; see also C-2. Several files also included various images and videos of adult individuals engaged in sexualized acts of urination, along with transgender individuals dressed as children. See C-2.
This evidence, along with the fact that Appellant has previously been investigated for sexually inappropriate behavior and has had prior participation in sex offender specific treatment, led Mr. Pflugfelder to opine that Appellant's pedophilic disorder overrode his emotional or volitional control and indicated a likelihood of reoffending. N.T. pp. 23-24, 37. Appellant was investigated as part of a Bucks County Children and Youth Services investigation, in which Appellant was responsible for babysitting three children, in which Appellant took covert photographs of a nine-year old and a twelve-year old's clothed buttocks, bare legs, and bare feet. N.T. p. 29. During this investigation Appellant also admitted to investigators that he is sexually attracted to children and has masturbated to videos of children. N.T. p. 18.
This Court accepts the conclusions and testimony of Mr. Pflugfelder that Appellant suffered from a mental abnormality to be credible and his opinion to be fully supported by the evidentiary record. Accordingly, the Court did not err in finding that the Commonwealth presented clear and convincing evidence to establish that Appellant suffers from a mental abnormality.
b. Appellant's Predatory Behavior
In order for Appellant to be classified as a SVP, the Commonwealth must also present evidence of predatory behavior. See Meals, 912 A.2d at 224. As explained above, an act is predatory when the act is "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." 42 Pa.C.S. § 9799.12. Furthermore, the statutory definition of "predatory" contains no requirement that Appellant engaged in predatory behavior in the instant offense. See Commonwealth v. Fletcher, 947 A.2d 776, 776 (Pa.Super. 2008). Rather, the requirement is that the offender is likely to engage in predatory behavior, regardless of whether the offense at issue was predatory itself. See Id; see also Commonwealth v. Feucht, 955 A.2d 377, 381 (Pa.Super. 2008).
Mr. Pflugfelder opined that Appellant has engaged in predatory behavior in the past, although he stated his belief that the neither the possession of child pornography nor masturbation to the same is "predatory behavior" for the purposes of a SVP designation. N.T. pp. 53-55. Mr. Pflugfelder based this opinion on the definition provided by the statute and opined that Appellant's prior conviction in 2002 for Terroristic Threats in which Appellant made an obscene phone call to a stranger victim, constituted predatory behavior as defined in the statute. N.T. pp. 40, 53-55. Appellant was convicted of Harassment in 2006, which according to the records of Bucks County Adult Probation, was for making a "fraudulent and malicious phone call to 911." N.T. p. 56; see also C-2.
Appellant's three convictions: Terroristic Threats resulting from an obscene phone call, his Harassment conviction for the fraudulent and malicious phone call to 911, and the instant conviction for Child Pornography and Criminal Use of a Communication Facility have an important commonality. In each instance Appellant targeted a stranger. Be it the obscene phone call, the 911 call, or when he uploaded "obvious child sexual exploitative material" to the website Twitter.com, each of these acts were directed to a victim that Appellant did not know. Moreover, during an investigation by Bucks County Children and Youth Services separate from the instant offense, Appellant admitted to masturbating to videos of children he personally knew. N.T. pp. 35-36. In light of this information, Mr. Pflugfelder found that Appellant had initiated a relationship in part or in whole to facilitate victimization. C-2 p. 6. As a result, Appellant has engaged in predatory behavior that has both been directed to a stranger victim and to an individual to whom he had initiated a relationship in part or in whole to facilitate victimization.
c. Analysis
Under the statue, the SOAB assessor conducting a SVP assessment is required to examine certain statutory indicators. These indicators signal the likelihood of future offenses, and are not factors to be weighed against each other. The presence of factors is the relevant analysis, factors that are not present or inapplicable to the current facts do not count against a conclusion that the defendant is a SVP. Of the 14 listed statutory sub-indicators, six of them were found present, two were not found present, and six were found to be unsuited for Appellant's assessment. This court found that (i) the offense involved multiple victims, (ii) the children victims depicted in the child sexual exploitative material were of very tender age, (iii) Appellant's prior criminal record counseled for a finding of SVP status, (iv) Appellant had completed his prior sentences, (v) the fact that Appellant had already completed sexual offender treatment and subsequently reoffended, and (vi) Appellant's behavioral characteristics made it likely that he would continue to offend. This Court found that (a) Appellant had no relationship with the victims for the instant offense, and (b) that Appellant's commission of the offense did not involve him displaying unusual cruelty. N.T. pp. 62-77; see also N.T., passim.
With respect to the other factors, this Court found that they were not applicable or probative in the current instance. The Court notes that in cases such as this, where child pornography is the primary component, the application of the factors is different from cases involving direct contact with child victims. The significance of this difference was commented upon in the hearing, as to some of the factors. For example, the Court noted a dichotomy in analyzing the factor involving whether or not the "offense involved a display of unusual cruelty by the individual during the commission of the crime" between analyzing the Appellant's conduct in the actual viewing of the child pornography, which was not in and of itself unusually cruel, and analyzing the behavior captured in the pornographic images, which was unusually cruel, and appealed to the Appellant enough for him to possess those images. In addition, consideration of the factor as to whether Appellant "exceeded the means necessary to achieve the offense" is not perhaps as clear in a child pornography case, as not only did Appellant seek out the content, but he also then downloaded the pictures and videos. In addition, while he could have committed the offense he was convicted of with a single image or video, Appellant in fact had 1,123 visually unique images and/or videos depicting known child pornography on his phone. While these considerations of the difference between child pornography cases and cases involving direct contact with victims may be of some interest, it is the conclusion of this Court that the statue was intended to address other concerns. In addition, as Appellant made no direct physical contact with the victims in the commission of the instant offense, his age, use of illegal drugs, and mental characteristics were found not probative for the purposes of the SVP assessment. N.T. pp. 64-65; 70; 73-75.
In sum, Mr. Pflugfelder concluded that "[Appellant] has engaged in sexually inappropriate behaviors over the course of his life that would suggest a sexual behavior problem" and "based on his mental abnormality and engaging in predatory behavior, he's likely to reoffend." N.T. pp. 36; 37. Mr. Pflugfelder testified that Appellant "has engaged in sexually inappropriate behaviors over the course of his live that would suggest a sexual behavior problem." N.T. p. 36.
Nor can Appellant's additional behavior be ignored. He admitted to Children and Youth that he has been attracted to children since before he was 12 years old, and had advanced beyond mere fantasy, to the consumption of child pornography, to taking photographs of the clothed buttocks, bare legs, and bare feet of prepubescent children for whom he was in a caretaking role. See D-8. This type of escalating behavior is deeply concerning and strongly suggests that Appellant is likely to engage in predatory sexually violent behavior in the future.
Based on Appellant's prior convictions, which involved predatory behavior, along with Appellant's behavior of covertly taking photographs of young female children he was babysitting, and the violent, cruel nature of the pornographic files found on Appellant's devices, this Court was satisfied that the Commonwealth, through Mr. Pflugfelder, presented clear and convincing evidence as to not only Appellant's mental abnormality, but also as to the presence of predatory behavior. This Court is also satisfied that Mr. Pflugfelder thoroughly considered the requisite statutory factors listed in 42 Pa.C.S. § 9799.24(b) as they relate to the circumstances surrounding the instant case. Mr. Pflugfelder assessed and pointed to several statutory factors that increased Appellant's likelihood of reoffending, such as the age of the victims depicted in the child pornography being prepubescent, the fact that Appellant had been investigated in the past by Bucks County Children and Youth Services for allegedly looking at the intimate parts of one of the children Appellant was in a caregiving role with, and the fact that Appellant previously completed sex offender treatment back in 2004. N.T. pp. 36; 48. Mr. Pflugfelder testified that the fact that Appellant had previously undergone treatment and then reoffended afterward is more concerning than if Appellant had never undergone sex offender treatment. N.T. p. 48.
Mr. Pflugfelder's conclusions were wholly supported by the evidentiary record. Accordingly, the Court found at the July 19, 2022, hearing that the Commonwealth clearly and convincingly met its burden of establishing that Appellant has both a mental abnormality and engaged in predatory behavior. Appellant, therefore, meets the criteria to be classified as a SVP pursuant to Pennsylvania statutory and decisional law.
CONCLUSION
Based on all of the forgoing, this Court respectfully submits that Appellant's sole issue on appeal is without merit and that this Court's July 19, 2022, in-Court Order finding that the Commonwealth presented clear and convincing evidence that Appellant met the statutory criteria to be classified as a Sexually Violent Predator should be affirmed and Appellant's appeal dismissed.
BRAIN MCGUFFIN, JUDGE