Com. v. South, C.

J-A19017-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

CHARLES BENTON SOUTH

Appellant No. 484 WDA 2013

Appeal from the Judgment of Sentence November 15, 2012
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0006300-2012

BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 22, 2014

Appellant, Charles Benton South, appeals from the judgment of

sentence entered on November 15, 2012 in the Criminal Division of the

Court of Common Pleas of Allegheny County, as made final by the denial of

post-sentence motions on February 15, 2013. On appeal, Appellant

challenges the trial court’s determination that the Commonwealth proved by

clear and convincing evidence at an assessment hearing that he met the

criteria for designation as a sexually violent predator (SVP) under Megan’s

Law, 42 Pa.C.S.A. §§ 9792 (statutory definitions) and 9795.4 (hearing

procedures).1 After careful review, we affirm.

____________________________________________

1
Revisions to Megan’s Law that took effect on December 20, 2012 now
provide for an assessment hearing and define the criteria for sexually violent
predator at 42 Pa.C.S.A. §§ 9799.24 (assessments) 9799.12 (definitions).

* Former Justice specially assigned to the Superior Court.
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The trial court summarized the undisputed facts as follows:

The incidents that ultimately led to Appellant’s guilty plea
occurred between January of 2010 and December of 2011, and
involved seven female victims between the ages of thirteen and
seventeen. Appellant engaged in illegal sexualized electronic
conversations with the victims and sent sexualized pictures and
video to some of the victims. Appellant solicited and received
sexualized photographs from some of the victims, one of whom
was an undercover agent with the Pennsylvania State Attorney
General’s Office. [On November 15, 2012, Appellant pled guilty
to four counts of unlawful contact with minors (18 Pa.C.S.A.
§ 6318(a)(4)), seven counts of criminal use of communication
facilities, (18 Pa.C.S.A. § 7512(a)), two counts of contact or
communication with a minor – sexual abuse, (18 Pa.C.S.A.
§ 6318(a)(5)), and four counts of possession of child
pornography, (18 Pa.C.S.A. § 6312(d)(1)).] After his plea but
prior to sentencing, th[e trial c]ourt ordered an SVP assessment
for Appellant pursuant to 42 P.S. § 9799.24. The Pennsylvania
Sexual Offender Assessment Board (SOAB) selected Dr. Alan
Pass to conduct the SVP assessment.

At the SVP hearing, Dr. Pass testified that he conducted an SVP
assessment on Appellant on October 1, 2012. Dr. Pass
completed the examination and interview on October 17, 2012.
According to Dr. Pass’s testimony, the SOAB assessment
included analysis of the facts of Appellant’s current offense, prior
offense history, other relevant characteristics of the individual
and factors that are supported in the sexual offender assessment
field as criteria reasonably related to the risk of re-offense. Dr.
Pass testified that he found Appellant’s behavior met the
classification criteria for a mental abnormality, specifically
Paraphilia NOS,[] as well as the statutory definition of predatory
behavior. Dr. Pass found that because Appellant targeted
multiple victims over an extended period of time, and suffers
from a mental abnormality (Paraphilia NOS), the likelihood of
appellant reoffending was high. Therefore, according to Dr.
Pass, Appellant met the classification criteria for SVP.

Appellant selected [Dr.] David Gentile as his expert witness.
[Dr.] Gentile testified that he would not classify Appellant as a
SVP based on the results of the several actuarial risk assessment
tools he employed during his evaluation of Appellant,

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specifically: the Able Assessment for Sexual Interest (AASI), the
Minnesota Multiphasic Personality Inventory (MMPI), the Sexual
Violence Risk-20 (SVR20) and the Static 99. [Dr.] Gentile
testified that the MMPI results indicated Appellant did not exhibit
issues consistent with personality disorders. The AASI indicated
that Appellant had no persistent deviant sexual interest in pre-
school-aged boys, pre-school-aged girls, grade-school-aged
boys, and grade-school-aged girls. [Dr.] Gentile testified that
the results of the AASI made a diagnosis for Paraphilia NOS
inappropriate. [Dr.] Gentile called into question Paraphilia NOS
as a valid mental health diagnosis, testifying that he believed it
to be a “garbage can” diagnosis, used often in SVP cases in
order to establish the criteria for mental abnormality.

Trial Court Opinion, 6/20/13, at 3-5 (footnote omitted).

At the conclusion of Appellant’s assessment hearing, the trial court

credited the testimony of Dr. Pass and determined that Appellant met the

statutory criteria for SVP designation. The court also sentenced Appellant to

11½ to 23 months of intermediate punishment, followed by five years of

probation. Appellant moved for post-sentence relief, alleging that the

Commonwealth’s evidence was insufficient and that the trial court’s

determination was against the weight of the evidence. The trial court denied

Appellant’s motion on February 15, 2013. Thereafter, Appellant filed a

timely notice of appeal on March 15, 2013. The trial court directed Appellant

to file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b) and, on April 5, 2013, Appellant timely complied. The

trial court issued its opinion on June 20, 2013.

Appellant raises the following questions for our review:

Was the evidence sufficient to support the [trial] court’s
determination that [Appellant] is a sexually violent predator?

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Whether the [trial] court’s determination that [Appellant] is a
sexually violent predator is against the weight of the evidence?

Appellant’s Brief at 1.

Appellant’s first claim challenges the trial court’s determination that he

should be classified as an SVP pursuant to Megan’s Law. Appellant asserts

that the Commonwealth failed to present clear and convincing evidence to

establish that he meets the requirements for said classification.

Where a person stands convicted of an offense listed in 42 Pa.C.S.A.

§ 9795.1, the trial court must order that the individual be assessed by the

board. 42 Pa.C.S.A. § 9795.4(a). After the board prepares its assessment

and submits it to the Commonwealth, the court conducts a hearing at which

the Commonwealth must prove by clear and convincing evidence that the

individual should be designated as an SVP. 42 Pa.C.S.A. § 9795.4(e). In

this context, the clear and convincing standard means that the evidence

offered in support of SVP classification must be so clear, direct, weighty, and

convincing that the factfinder may arrive at a clear conclusion, without

hesitation, that the SVP classification is proper. Commonwealth v. Meals,

912 A.2d 213, 219 (Pa. 2006).

Our standard of review is clear when a defendant challenges the

sufficiency of the evidence offered in support of his SVP designation. We

may not weigh the evidence presented to the trial court and we may not

make credibility determinations. Commonwealth v. Geiter, 929 A.2d 648,

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650 (Pa. Super. 2007), appeal denied, 940 A.2d 362 (Pa. 2007). Instead,

we view all the evidence and its reasonable inferences in a light most

favorable to the Commonwealth. Commonwealth v. Moody, 843 A.2d

402, 408 (Pa. Super. 2004), appeal denied, 882 A.2d 477 (Pa. 2005). We

will disturb an SVP designation only where the Commonwealth did not

present clear and convincing evidence to enable the court to find each

element required by the SVP statute. Id.

Expert reports, as well as expert testimony, may constitute

substantive evidence which establishes the statutory prerequisites for SVP

classification. Meals, 912 A.2d at 223. In addition, although a defendant

may refute such evidence by contesting its credibility or reliability before the

court, such challenges are directed to the weight, not the sufficiency, of the

Commonwealth's case. Id. at 224. Thus, they do not affect our sufficiency

analysis. Commonwealth v. Feucht, 955 A.2d 377, 380-382 (Pa. Super.

2008), appeal denied, 963 A.2d 467 (Pa. 2008).

The Pennsylvania Legislature has defined the SVP classification as

follows:

A person who has been convicted of a sexually
violent offense as set forth in [42 Pa.C.S.A.
§] 9795.1 (relating to registration) and who is
determined to be a sexually violent predator under
[42 Pa.C.S.A. §] 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.

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42 Pa.C.S.A. § 9792. There is no dispute in this case that Appellant has

been convicted of a qualifying offense which satisfies the first element of the

SVP designation under § 9792. The issue in this case is whether the

Commonwealth adduced clear and convincing evidence to establish that

Appellant qualified as a sexually violent predator under § 9795.4 due to a

mental abnormality or personality disorder that makes him likely to engage

in predatory sexually violent offenses.

Section 9795.4 sets forth the following assessment factors:

(b) Assessment.

Upon receipt from the court of an order for an
assessment, a member of the board as designated
by the administrative officer of the board shall
conduct an assessment of the individual to
determine if the individual should be classified as a
sexually violent predator. The board shall establish
standards for evaluations and for evaluators
conducting the assessments. 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;

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(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 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
assessment field as criteria reasonably related to the
risk of reoffense.

42 Pa.C.S.A. § 9795.4.

With respect to these assessment factors, there is no statutory

requirement that all of them, or any particular set of them, need be present

in order to support an SVP designation. Meals, 912 A.2d at 220-223. The

factors are not a checklist, with each one demonstrating in some fashion

that an SVP classification has, or has not, been established. Id. at 222.

Rather, the presence or absence of one or more factors may simply suggest

the presence or absence of one or more particular types of mental

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abnormalities. See id. at 221. For this reason, although the board must

examine all the factors listed under § 9795.4, the Commonwealth need not

show that any one factor is present, or absent, in a particular case. Id.

Finally, under Megan’s Law, a mental abnormality is defined 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.” 42 Pa.C.S.A. § 9792.

Moreover, a sexually violent offense is considered predatory in nature if it 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.” Id. Again, the central inquiry for the

trial court in this case, as in every case, is whether the Commonwealth's

evidence, including the board's assessment, shows that an individual who

has been convicted of a qualifying offense suffers from a mental abnormality

or disorder which makes that person likely to engage in predatory sexually

violent offenses. 42 Pa.C.S.A. § 9792.

To establish that Appellant qualified for SVP designation under Megan’s

Law, the Commonwealth relied upon the assessment report prepared by Dr.

Pass, a member of the board, together with Dr. Pass’ testimony at the SVP

hearing. Appellant stipulated that Dr. Pass qualified as an expert in forensic

psychiatry. In addition, Dr. Pass identified the documents that he received

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and reviewed in preparing the opinions he offered in this case, including the

SOAB informed consent form, various investigative reports, the criminal

information filed against Appellant, correspondence from Appellant’s counsel,

and Appellant’s criminal offense history. Dr. Pass also interviewed Appellant

as part of his assessment. The report and testimony offered by Dr. Pass

referred to the factors specified in § 9795.4 and provided his analysis and

commentary as to how he evaluated Appellant’s background information,

including the facts pertaining to the present offenses, in light of each factor

enumerated in the statute. Counsel for Appellant had an opportunity to

cross-examine Dr. Pass at the SVP hearing.

Based on his assessment of Appellant, Dr. Pass determined that

Appellant met the criteria for paraphilia not otherwise specified.2 Dr. Pass

also concluded that Appellant had engaged in predatory behavior as defined

by Megan’s Law because he targeted multiple victims over an extended

____________________________________________

2
Paraphilia not otherwise specified is coded in the DSM-IV under
classification code 302.9. The “DSM-IV” is a manual used for the diagnosis
and classification of mental disorders. Elaborating upon his conclusion that
Appellant met the classification for paraphilia not otherwise specified, Dr.
Pass testified that the essential features in paraphilias which are associated
with sexual disorders are recurrent intense sexual-arousing fantasies, sexual
urges or behaviors generally involving nonhuman objects, the suffering or
humiliation of one’s self or one’s partner or children or other nonconsenting
persons that occur over a period of at least six months. This diagnostic
classification is offered also if the behavior, sexual urges or fantasies cause
clinically significant distress or impairment in social, occupational or other
important areas of self-functioning for the defendant. N.T., 11/15/12, at 19-
22.

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period of time and because he initiated these relationships to promote and

maintain victimization. Dr. Pass also testified that Appellant’s mental

abnormality made it likely that he would re-offend. Based upon his

consideration of these factors, Dr. Pass concluded that Appellant qualified for

SVP designation under Megan’s Law.

Viewing Dr. Pass’ report and expert testimony in the light most

favorable to the Commonwealth, we conclude that there was clear and

convincing evidence presented to the trial court in support of Appellant’s SVP

designation. Thus, Appellant’s claim of insufficiency has no merit.

Appellant raises various contentions in his brief to support the claim

that the evidence introduced at his SVP hearing was insufficient to classify

him as a sexually violent predator. For example, he points out that he had

no physical contact with the victims, that he initiated psychological

treatment following his arrest, and that he continues in treatment now.

Appellant also relies upon the findings of his expert, Dr. Gentile. These

included: 1) Dr. Gentile’s conclusion that Appellant did not fit the diagnosis

of paraphilia not otherwise specified; 2) Dr. Gentile’s conclusion that

Appellant did not meet the criterion for a mental abnormality; 3) Appellant’s

lack of a criminal history or history of drug or alcohol abuse; 4) the absence

of escalation in Appellant’s offenses; and 5) the results of psychological

testing which showed that Appellant possessed only a low-to-moderate risk

of re-offense. Given our conclusion that the Commonwealth adduced

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sufficient evidence to support Appellant’s SVP designation, these arguments

relate primarily to the weight and credibility of the Commonwealth's

evidence and are not matters that we ordinarily entertain in a sufficiency

challenge. See Feucht, 955 A.2d at 382-383.

Appellant also argues that the opinion of this Court in

Commonwealth v. Krouse, 799 A.2d 835, 840 (Pa. Super. 2002) (en

banc), appeal denied, 821 A.2d 586 (Pa. 2003), authorizes us to re-assess

the evidence on appellate review of an SVP designation. Krouse, however,

was thoroughly repudiated by our Supreme Court in Meals, 912 A.2d at

222-223 (disapproving Krouse, restricting “[t]he task of the Superior Court

[to] one of review, and not of weighing and assessing evidence in the first

instance,” and observing that the panel in Krouse “stepped beyond its

authority when it reweighed the evidence, giving more weight to “absent”

factors than to those found and relied upon by the trial court, and ignoring

the Commonwealth's expert's explanation of the relevance of the absent

factors”). Hence, Krouse affords Appellant no basis for relief. For each of

these reasons, Appellant’s sufficiency challenge fails.

Appellant next claims that the trial court’s SVP determination was

against the weight of the evidence. Appellant’s weight claim rests largely

upon the same facts and assertions offered in support of his sufficiency

challenge. Specifically, Appellant alleges that: 1) Dr. Pass’ diagnosis of

paraphilia not otherwise specified was vague and unreliable; 2) the SOAB

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evaluation was based solely on police reports; 3) there was nothing in

Appellant’s history or his SOAB evaluation that supported a diagnosis of

paraphilia not otherwise specified; and, 4) Dr. Gentile conducted a far more

thorough forensic investigation of Appellant which concluded, credibly and

reliably, that Appellant did not have a mental disorder and was not likely to

re-offend. See Appellant’s Brief at 11-14.

Our standard of review of a weight of the evidence claim is for
an abuse of discretion. Appellate review is limited to whether
the trial judge's discretion was properly exercised, and relief will
only be granted where the facts and inferences of record disclose
a palpable abuse of discretion. Indeed, it is oft-stated that the
trial court's denial of a motion for a new trial based on a weight
of the evidence claim is the least assailable of its rulings. We
discern no basis on which to distinguish our standard of review
on weight claims, whether challenging the weight of the
evidence to support a guilty verdict or a trial court's SVP
determination. A defendant must put the issue before the trial
court in the first instance because:

it is not the function of the appellate court to substitute its
judgment based on a cold record for that of the trial court.
The weight to be accorded conflicting evidence is exclusively
for the fact finder, whose findings will not be disturbed on
appeal if they are supported by the record.

Commonwealth v. Ratushny, 17 A.3d 1269, 1272 (Pa. Super. 2011)

(citations and internal quotations omitted).

After careful review, we are satisfied that the record supports the trial

court’s findings and that the court’s legal conclusions are sound. Because

we can discern no abuse of the trial court’s discretion, we are without

grounds to disturb the court’s SVP determination. Accordingly, Appellant is

not entitled to relief on his weight claim.

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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/22/2014

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