Opinion
J. S64041/15 No. 668 MDA 2015
11-23-2015
COMMONWEALTH OF PENNSYLVANIA v. DAVID JONATHAN WEAVER, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence February 10, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division No(s).: CP-36-CR-0000183-2011 CP-36-CR-0000184-2011 BEFORE: FORD ELLIOTT, P.J.E., WECHT, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, David Jonathan Weaver, appeals from the judgment of sentence entered in the Lancaster County Court of Common Pleas. Appellant challenges the court's finding that he was a sexually violent predator ("SVP"). We affirm.
We note "[w]e may affirm the trial court on any ground." Commonwealth v. Lynch , 820 A.2d 728, 730 n.3 (Pa. Super. 2003).
We adopt the facts as set forth in the trial court's opinion. Trial Ct. Op., 6/1/15, at 1-4. Following a jury trial, Appellant was found guilty of indecent assault, indecent exposure, aggravated indecent assault, sexual assault, involuntary deviate sexual intercourse, rape, statutory sexual assault, corruption of minors, and unlawful contact with a minor. The court ordered a presentence investigation and a sex offender assessment. On December 19, 2011, following a SVP hearing, the court found Appellant to be a SVP and sentenced him to fourteen to thirty years' imprisonment. Appellant filed a post sentence motion which was denied.
Appellant filed an appeal to this Court. Commonwealth v. Weaver , 489 MDA 2012 (unpublished memorandum) (Pa. Super. Dec. 3, 2012). This Court found no merit to Appellant's challenge to "the constitutionality of Megan's Law, in light of Article III, Section 3's restriction against the passage of bills containing more than one subject." Id. at 20. This Court relied upon Commonwealth v. Neiman , 5 A.3d 353 (Pa. Super. 2010) (en banc). Id . at 8. We vacated "the portion of the judgment of sentence concerning restitution and remanded for resentencing." Id. at 20.
This Court "decline(d) Appellant's invitation to disregard the holding in Neiman simply because of its current status as 'on appeal' to our Supreme Court." Id. at 8.
Appellant filed a petition for allowance of appeal. The Pennsylvania Supreme Court granted the petition for allowance of appeal based upon Commonwealth v. Neiman , 84 A.3d 603 (Pa. 2013). Commonwealth v. Weaver , 96 A.3d 987 (Pa. 2014) (Per Curiam) (Order). The Supreme Court vacated our decision in Weaver based upon Neiman , and remanded for reconsideration. Id. Allocatur was denied as to the remaining issues. Id. On remand, this Court held:
In Neiman , our Supreme Court held that amendments to Megan's Law II, referred to as Megan's Law III, were unconstitutional because the enacting legislation was violative of the Single Subject Rule, which required that each piece of legislation pertain to only one subject. Neiman , 84 A.3d at 605, 607 n.19, 611-12, 616.
In light of our Supreme Court's disposition in Neiman striking the entirety of Act 152 as violative of the Pennsylvania Constitution, we are constrained to vacate Appellant's judgment of sentence with regard to his determination as a sexually violent predator under Megan's Law III, which subjected him to the registration requirements pursuant to Megan's Law III. Hence we vacate the judgment of sentence of the trial court entered pursuant to Megan's Law III and remand for resentencing.Weaver , 489 MDA 2012 (unpublished memorandum at 10) (Pa. Super. Sept. 23, 2014).
Following a resentencing hearing on February 10, 2015, the court found Appellant to be a SVP and resentenced him to fourteen to thirty years' imprisonment. Appellant filed a post sentence motion, which was denied. This timely appeal followed. Appellant filed a Pa.R.A.P. 1925(b) statement of errors complained of on appeal and the trial court filed a responsive opinion.
The certified record transmitted on appeal did not initially include the notes of testimony from the February 10th sentencing hearing. Upon informal inquiry by this court, the trial court provided the transcript. We remind Counsel that "the ultimate responsibility of ensuring that the transmitted record is complete rests squarely upon the appellant . . . ." Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super. 2008) (en banc) (citation omitted).
Appellant raises the following issue for our review:
Did not the Commonwealth fail to prove [Appellant's] status as a [SVP] when the evidence failed to establish the element of "predatory" behavior under the narrower definition of that term appearing in Megan's Law II in contrast to the more expansive definition appearing in Megan's Law III and in the SORNA statute?Appellant's Brief at 4 (emphasis added).
We note that Megan's Law, 42 Pa.C.S. §§ 9731-9799, expired on December 20, 2012, and was replaced by the Sexual Offender Registration and Notification Act ("SORNA"), 42 Pa.C.S. §§ 9799.10-9799.41. The definition of a SVP under SORNA is the same as under Megan's Law. See note 17 infra.
Appellant claims that the testimony of Dr. Robert Stein from the first SVP hearing and sentencing hearing, did not establish that Appellant's "conduct met the 'predatory' element of the SVP definition" in Megan's Law II. Id. at 23 (emphasis added). Dr. Stein quoted the statutory definition of predatory as it appeared in Megan's Law III. Id. Based upon the definition of predatory in Megan's Law III, which Appellant contends is much broader than the definition in Megan's Law II, Dr. Stein concluded that Appellant was a SVP. Id. at 23-24. Appellant avers that the definition of predatory in Megan's Law II does not apply in the instant case because Appellant did not establish or promote the relationship with his stepdaughter "for the primary purpose of victimization, which is the narrower aspect of the Megan's Law II 'predatory' definition." Id. at 31. He concludes his SVP assessment should be reversed. Id.
At the February 10th resentencing hearing, the court accepted the testimony of Dr. Stein and his written report from the first SVP hearing, based upon the stipulation of counsel. N.T., 2/10/15, at 5.
Our review is governed by the following principles:
A challenge to a determination of SVP status requires us to view the evidence:
[I]n the light most favorable to the Commonwealth. The reviewing court may not weigh the evidence or substitute its judgment for that of the trial court. The clear and convincing standard requires evidence that 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.
The scope of review is plenary. "[A]n expert's opinion, which is rendered to a reasonable degree of professional certainty, is itself evidence."Commonwealth v. Prendes , 97 A.3d 337, 355-56 (Pa. Super.) (citations omitted), appeal denied, 105 A.3d 736 (Pa. 2014).
A challenge to the sufficiency of the evidence to support an SVP designation requires the reviewing court to accept the undiminished record of the case in the light most favorable to the Commonwealth. The reviewing court must examine all of the Commonwealth's evidence without consideration of its admissibility. A successful sufficiency challenge can lead to an outright grant of relief such as a reversal of the SVP designation, whereas a challenge to the admissibility of the expert's opinion and testimony is an evidentiary question which, if successful, can lead to a new SVP hearing.
The basis for a determination that an individual is a SVP is statutory. Id. at 357.
Therefore, the salient statutory inquiry for SVP designation:
[I]s identification of the impetus behind the commission of the offense; that is, whether it proceeds from a mental defect/personality disorder or another motivating factor. The answer to that question determines, at least theoretically, the extent to which the offender is likely to reoffend, and [S]ection [9799.24] provides the criteria by which such likelihood may be gauged.
"To deem an individual a sexually violent predator, the Commonwealth must first show [the individual] 'has been convicted of a sexually violent offense as set forth in [section 9799.14]. . . .'" Commonwealth v. Askew , 907 A.2d 624, 629 (Pa. Super. 2006)[.] See also 42 Pa.C.S.A. § 9799.12. "Secondly, the Commonwealth must show that the individual has 'a mental abnormality or personality disorder that makes [him] likely to engage in predatory sexually violent offenses.'" When the Commonwealth meets this burden, the trial court then makes the final determination on the defendant's status as an SVP.Id. at 357-58 (some citations omitted).
Section 9799.24 provides in pertinent part:
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.
(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.
Id. We note these are the same assessment factors as in Megan's Law II. See 42 Pa.C.S. § 9795.4.
(4) Factors that are supported in a sexual offender assessment field as criteria reasonably related to the risk of reoffense.
This Court opined that
with 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. [ Commonwealth v.] Meals , [912 A.2d 213,] 220-23 [(Pa. 2006)]. The factors are not a checklist with each one weighing in some necessary fashion for or against SVP designation. Id. at 222. 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. See id. at 221.
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. Meals , 912 A.2d at 221. 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. 42 Pa.C.S.A. § 9792. Having conducted a hearing and considered the evidence presented to it, the court then decides whether a defendant is to be designated an SVP and thus made subject to the registration requirements of 42 Pa.C.S.A. § 9795.1(b)(3).Commonwealth v. Feucht , 955 A.2d 377, 381 (Pa. Super. 2008).
[A] "sexually violent predator" is defined, in pertinent part, as "[a] person who has been convicted of a sexually violent offense . . . and who is determined to be a sexually violent predator under section [9799.24] (relating to assessments) due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses." 42 Pa.C.S.A. § 9792. This definition contains no requirement for a determination that the SVP engaged in predatory behavior in the instant offense. The statutory definition of "predatory," about which the arguments before us revolve, is relevant only in that an SVP must be found to have a mental abnormality or personality disorder which renders the SVP likely to engage in predatory behavior. [The a]ppellant does not challenge that determination.Commonwealth v. Fletcher , 947 A.2d 776, 776-77 (Pa. Super. 2008) (some citations and footnote omitted and some emphasis added) (quoted with approval in Feucht , 955 A.2d at 381). The Fletcher Court noted that "42 Pa.C.S.A. § [9799.24(1)] (listing 'Facts of the current offense' as a mandatory area of inquiry in assessment); there is simply not a requirement that the offense be found to have been 'predatory.'" Id. at 777 n.1 (emphasis added). This Court concluded that "[b]ecause [the a]ppellant has challenged only one evidentiary insufficiency in his SVP classification, one which is not a requirement thereof, we find no merit to his appeal." Id. at 777 (emphasis added).
A SVP under SORNA is also defined as a person "who, on or after the effective date of this subchapter, is determined to be a sexually violent predator under section 9799.24 (relating to assessments) due to a mental abnormality or personality disorder that makes the individual likely to engage in predatory sexually violent offenses." 42 Pa.C.S. § 9799.12 (emphasis added).
Analogously, in the case sub judice, Appellant has challenged only one evidentiary insufficiency in his SVP classification, viz., that the evidence failed to establish the element of predatory behavior. Because there is no requirement that the offense be found to have been predatory, as focus is on whether a defendant is likely to engage in predatory behavior in the future, we find no relief is due. See Feucht , 955 A.2d at 381; Fletcher , 947 A.2d at 776-77.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/23/2015
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