J-A24015-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILLIAM MICKELSON
Appellant No. 1487 EDA 2013
Appeal from the Judgment of Sentence April 8, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002107-2012;
CP-51-CR-0002108-2012
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 10, 2014
Appellant, William Mickelson, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his jury
trial convictions for attempted rape, attempted sexual assault, burglary,
criminal trespass, false imprisonment, and simple assault.1 We affirm.
The trial court opinion sets forth the relevant facts of this appeal as
follows:
On June 24, 2009, Annette West [(“Victim”)] was walking
home from a Chinese food store at approximately 3:00
a.m. when Appellant grabbed her from behind, punched
her and told her he was going to “fuck her really good”
while ripping her shirt and scratching her neck. [Victim’s]
____________________________________________
1
18 Pa.C.S.A. §§ 901; 901; 3502; 3503; 2903; 2701 respectively.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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neighbor, Kristal Bellinger, heard [Victim] screaming
outside her home and came to her front door to see if
[Victim] was [all right]. In response, Appellant took
[Victim] by the arm and told her “you better say you’re
having an asthma attack.” [Victim] complied.
As Appellant began to walk [Victim] up Bellinger’s steps,
Bellinger went back inside and shut the door. Appellant
then kicked in Bellinger’s door and entered her home.
Appellant and Bellinger started to fight, at which point
Bellinger’s sister, Sandra, came downstairs, grabbed a bike
and told Appellant to leave. Following that altercation,
Appellant walked out the front door. Meanwhile, [Victim],
who had broken away from Appellant, ran to her home and
told her brother, Westfield, to call the police.[2]
Police Officers Zagursky and Wright were on duty that
night when they responded to two radio calls about a rape
in progress at 60th and Catharine Streets. The officers
were driving southbound on 60th Street when they
approached several people flagging them down between
Catharine and Webster Streets. They next encountered
[Victim], who looked disheveled and was crying that a man
had just attempted to rape her.
The officers also spoke with Westfield West, who told them
that the attacker was a black male with a short, stocky
build, dark complexion and no shirt. He told the officers
the perpetrator had gone towards the 5900 block of
Webster Street. Zagursky saw Appellant on that block,
which was illuminated by street lights, ducking in and out
of the sidewalk and yelling gibberish. As Wright
approached Appellant, he saw him run onto a porch, where
he was subsequently arrested. Wright testified that he had
seen Appellant earlier that night because he remembered
he did not have a shirt on.
[Victim] met with Detectives Taylor and Organ in the
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2
This 911 call forms the basis for Appellant’s first issue. During this call,
Westfield West told the operator that his sister was crying and upset, and
that he could see “the man” who had “no shirt.”
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Special Victims Unit that night. She had fresh scratches
and her gray sweatshirt was ripped. Because there was no
penetration and there were no bodily fluids exchanged
between Appellant and [Victim], a DNA test on her
sweatshirt was not warranted.
Kristal Bellinger testified she had only a brief opportunity
to see Appellant’s face in her home and that Appellant did
“not look like the man.” However, Appellant was identified
by both [Victim] and Sandra Bellinger at the scene and at
trial. While [Victim] testified that she could not remember
if Appellant had a shirt on, she could remember his face
and his muscles. She further testified she had no doubt
that Appellant was the man who attacked her.
Dr. Barbara Ziv testified at a Megan’s Law hearing that
Appellant is a sexually violent predator [(“SVP”)].1 She
reached this conclusion because of his mental
abnormalities and his [recidivism] risk. Appellant’s mental
abnormalities include antisocial orientation, antisocial
personality disorder, and impulsivity. She further stated
that Appellant’s pattern of bad behavior as a result of his
mental abnormalities has been consistent from the age of
ten, when he attempted to burn his stepfather, to the
present. Appellant’s history of misconduct includes
indecent exposure in prison as well as prostitution.
1
Dr. Ziv explained that she did not interview
Appellant because people undergoing these types of
assessments often lie.
Dr. Ziv testified that Appellant is likely to reoffend. While
she could not assign a specific percentage number to his
recidivism risk, she believed he would probably recidivate
because of his antisocial traits and the fact that he had
victimized a stranger. She also stated that while his
previous sexual behaviors only made this link stronger, the
combination of antisocial traits and a stranger victim would
still have fulfilled the requirements under the statute for
[an SVP] even absent the previous sexual activity.
(Trial Court Opinion, filed October 28, 2013, at 1-2).
A jury convicted Appellant on December 12, 2012. On April 8, 2013,
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the court sentenced Appellant to twenty-seven (27) to fifty-four (54) years’
incarceration and bifurcated the SVP portion of the hearing.3 On April 12,
2013, the court found Appellant qualified for SVP status. Appellant timely
filed a motion for modification of sentence and/or arrest of judgment on April
22, 2013, which the court denied. Appellant timely filed a notice of appeal
on May 21, 2013. On May 31, 2013, the court ordered Appellant to file a
concise statement of errors complained of on appeal, pursuant to Pa.R.A.P.
1925(b), which Appellant filed on June 21, 2013.
Appellant raises the following issues for our review:
DID THE TRIAL COURT ERR OR ABUSE ITS DISCRETION IN
ADMITTING THE 911 RECORDING OF THE NON-
TESTIFYING DECLARANT WHERE AN OTHERWISE
AVAILABLE DECLARANT FAILED TO APPEAR AND THE
ATTORNEY FOR THE COMMONWEALTH PLAYED THE 911
RECORDING OVER THE OBJECTION OF ATTORNEY FOR
[APPELLANT] DENYING APPELLANT THE RIGHT TO
CONFRONTATION[?]
WAS THE JURY’S VERDICT OF GUILT AGAINST THE
WEIGHT OF THE EVIDENCE WHERE ASSIGNED POLICE
OFFICERS CONTRADICTED EACH OTHER’S TESTIMONY
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3
The statutory language of 42 Pa.C.S.A. § 9795.4(a) indicates the SVP
assessment is to be conducted after conviction but before sentencing.
Commonwealth v. Whanger, 30 A.3d 1212 (Pa.Super. 2011). In
Whanger, this Court determined a defendant can waive this statutory
requirement. Additionally, our Supreme Court held 42 Pa.C.S.A. §
9795.4(a) was unconstitutional, in Commonwealth v. Neiman, ____ Pa.
____, 84 A.3d 603 (2013). Here, Appellant consented to the bifurcation of
the sentencing and SVP hearings, which the court permitted at the
sentencing hearing on April 8, 2013. Further, Appellant was advised of his
post-sentencing rights at the conclusion of the SVP hearing, such that his
post sentence motions were timely filed.
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REGARDING APPELLANT’S ARREST, A COMPLAINANT
STATED DEFINITELY THAT APPELLANT WAS NOT THE
PERPETRATOR OF THE ALLEGED CRIME AND POLICE
FAILED TO ANALYZE DNA EVIDENCE ON THE SHIRT OF
THE COMPLAINANT FOLLOWING AN ALLEGED PHYSICAL
AND SEXUAL ASSAULT?
WAS THE TRIAL COURT’S DETERMINATION OF
APPELLANT’S SEXUALLY VIOLENT PREDATOR
DESIGNATION IN ERROR WHERE THE COMMONWEALTH
FAILED TO MEET ITS BURDEN OF “CLEAR AND
CONVINCING EVIDENCE” THAT APPELLANT IS A SEXUALLY
VIOLENT PREDATOR?
(Appellant’s Brief at 7-8).
In his first issue, Appellant argues the 911 radio call of Westfield West,
a declarant who did not testify at trial, was offered for the truth of the
matter asserted. Appellant contends the statement did not qualify as an
exception to the rule against hearsay. Further, Appellant claims the
admission of the radio call as evidence denied Appellant his Sixth
Amendment right to confrontation. Appellant submits the radio call elicited a
statement in favor of the Commonwealth’s case that was a deciding factor
for the jury in its determination of Appellant’s guilt. Appellant concludes the
admission of this hearsay was an error of law and Appellant is entitled to a
new trial. We disagree.
The standard of review for admission of evidence is as follows:
Admission of evidence is within the sound discretion
of the trial court and will be reversed only upon a
showing that the trial court clearly abused its
discretion. Admissibility depends on relevance and
probative value. Evidence is relevant if it logically
tends to establish a material fact in the case, tends
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to make a fact at issue more or less probable or
supports a reasonable inference or presumption
regarding a material fact.
Commonwealth v. Drumheller, 570 Pa. 117, 135, 808
A.2d 893, 904 (2002), certiorari denied, 539 U.S. 919, 123
S.Ct. 2284, 156 L.Ed.2d 137 (2003). See also
Commonwealth v. Lewis, 885 A.2d 51, 54 (Pa.Super.
2005).
Judicial discretion requires action in conformity with
law, upon facts and circumstances judicially before
the court, after hearing and due consideration. An
abuse of discretion is not merely an error of
judgment, but if in reaching a conclusion the law is
overridden or misapplied or the judgment exercised
is manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill will, as shown by the evidence
or the record, discretion is abused.
Commonwealth v. Hunt, 858 A.2d 1234, 1238
(Pa.Super. 2004) (en banc), appeal denied, 583 Pa. 659,
875 A.2d 1073 (2005) (internal citations and quotation
marks omitted).
Pennsylvania Rule of Evidence 801 defines hearsay as
follows:
Rule 801. Definitions
(a) Statement. A “statement” is
(1) an oral or written assertion or
(2) nonverbal conduct of a person, if it is intended
by the person as an assertion.
(b) Declarant. A “declarant” is a person who
makes a statement.
(c) Hearsay. “Hearsay” is a statement, other
than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the
truth of the matter asserted.
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Pa.R.E. 801.[4] Pennsylvania Rule of Evidence 803
provides exceptions to the hearsay rule and states, in
pertinent part:
Rule 803. Hearsay exceptions; availability of
declarant immaterial
The following statements, …, are not excluded by the
hearsay rule, even though the declarant is available
as a witness:
(1) Present sense impression. A statement
describing or explaining an event or condition made
while the declarant was perceiving the event or
condition, or immediately thereafter.
(2) Excited utterance. A statement relating to a
startling event or condition made while the declarant
was under the stress of excitement caused by the
event or condition.
(3) Then existing mental, emotional, or
physical condition. A statement of the declarant’s
then existing state of mind, emotion, sensation, or
physical condition, such as intent, plan, motive,
design, mental feeling, pain, and bodily health. A
statement of memory or belief offered to prove the
fact remembered or believed is included in this
exception only if it relates to the execution,
revocation, identification, or terms of declarant’s will.
Pa.R.E. 803.[5] See Commonwealth v. Gray, 867 A.2d
560 (Pa.Super. 2005), appeal denied, 583 Pa. 694, 879
____________________________________________
4
Rule 801 was recently rescinded and replaced by a revised version,
effective March 18, 2013. The relevant language in the new rule is
substantially the same as in the former rule.
5
Rule 803 was also rescinded and replaced by a revised version, effective
March 18, 2013. The relevant language in the new rule is substantially the
same as in the former rule.
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A.2d 781 (2005) (applying “present sense impression”
exception to hearsay rule only if declarant had no
opportunity to form purpose of misstating observation).
See Commonwealth v. Hood, 872 A.2d 175, 181
(Pa.Super. 2005), appeal denied, 585 Pa. 695, 889 A.2d
88 (2005) (stating “excited utterance” exception to
hearsay rule admits statements made while declarant was
under stress of excitement caused by event or condition
related to startling event); Commonwealth v. Carmody,
799 A.2d 143 (Pa.Super. 2002) (describing excited
utterance as “a spontaneous declaration by a person
whose mind has been suddenly made subject to an
overpowering emotion caused by some unexpected and
shocking occurrence, which that person had just
participated in or closely witnessed, and made in reference
to some phase of that occurrence which he perceived, and
this declaration must be made so near the occurrence both
in time and place as to exclude the likelihood of its being
emanated in whole or in part from his reflective faculties”).
Commonwealth v. Levanduski, 907 A.2d 3, 13-15 (Pa.Super. 2006) (en
banc), appeal denied, 591 Pa. 711, 919 A.2d 955 (2007).
Statements not excluded by the hearsay rule remain inadmissible as
evidence if the statements violate the Sixth Amendment to the United States
Constitution. See Commonwealth v. Allshouse, 614 Pa. 229, 36 A.3d
163 (2012). We observe:
The Sixth Amendment to the United States Constitution
guarantees that “[i]n all criminal prosecutions, the accused
shall enjoy the right…to be confronted with the witnesses
against him.” U.S. Const., amend. VI. This constitutional
protection is known as the Confrontation Clause. In 1980,
the United States Supreme Court, in Ohio v. Roberts,
448 U.S. 56 [100 S.Ct. 2531, 65 L.Ed.2d 597] (1980) held
that the Confrontation Clause did not bar admission of an
unavailable witness's statement against a criminal
defendant, provided the statement was surrounded by
“adequate indicia of reliability.” 448 U.S. at 66, 100 S.Ct.
2531. Such indicia existed when the testimony being
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considered either fit within a “firmly rooted hearsay
exception,” or contained “particularized guarantees of
trustworthiness.” Id.
* * *
[The Court in Crawford v. Washington, 541 U.S. 36, 124
S.Ct. 1354, 158 L.Ed.2d 177 (2004)] held the
Confrontation Clause prohibits out-of-court testimonial
statements by a witness, regardless of whether the
statements are deemed reliable by the trial court, unless
(1) the witness is unavailable, and (2) the defendant had a
prior opportunity to cross-examine the witness:
Where nontestimonial hearsay is at issue, it is wholly
consistent with the Framers’ design to afford the
States flexibility in their development of hearsay
law—as does Roberts, and as would an approach
that exempted such statements from Confrontation
Clause scrutiny altogether. Where testimonial
evidence is at issue, however, the Sixth Amendment
demands what the common law required:
unavailability and a prior opportunity for cross-
examination. Id. (emphasis added).
The Crawford Court expressly declined, however, to
explain the distinction between testimonial and
nontestimonial statements, stating “[w]e leave for another
day any effort to spell out a comprehensive definition of
‘testimonial.’ Whatever else the term covers, it applies at a
minimum to prior testimony at a preliminary hearing,
before a grand jury, or at a former trial; and to police
interrogations.” Id. (footnote omitted).
Two years after the Supreme Court’s Crawford decision,
the Court had the opportunity to clarify the difference
between testimonial and nontestimonial hearsay in Davis
v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165
L.Ed.2d 224 (2006). At issue in the consolidated appeal in
Davis were two separate statements. The first was a
statement made by a victim of spousal abuse to a 911
operator; the second was a wife’s statement to police
officers dispatched to investigate a domestic disturbance,
set forth in a battery complaint. In finding the statement
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to the 911 operator nontestimonial, but the wife’s
statement to the police officers testimonial, the Davis
Court set forth the following test for determining whether
statements are testimonial or nontestimonial:
Statements are nontestimonial when made in the
course of police interrogation under circumstances
objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet
an ongoing emergency. They are testimonial when
the circumstances objectively indicate that there is
no such ongoing emergency, and that the primary
purpose of the interrogation is to establish or prove
past events potentially relevant to later criminal
prosecution. Id. at 822, 126 S.Ct. at 2266.
Allshouse, supra at 241-44, 36 A.3d at 170-72.
Instantly, Westfield West’s statement to the 911 operator was an out-
of-court statement offered for the truth of the matter asserted. The
statement, however, described events and conditions while Mr. West
perceived them. Specifically, Mr. West made the statements to the 911
Operator to assist in an ongoing emergency involving an attack on his sister.
Thus, the 911 tape fell under the present sense impression exception to the
rule against hearsay and was admissible as a non-testimonial statement
under Crawford.
In his second issue, Appellant argues the Commonwealth’s key
witnesses’ testimony at trial was full of discrepancies and inconstancies
which raised substantial questions regarding Appellant’s guilt. Appellant
contends the failure of the detectives to conduct DNA tests on the victim’s
clothing did not support the jury’s finding that Appellant was guilty beyond a
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reasonable doubt. Appellant submits the verdict was against the weight of
the evidence. Appellant concludes the court erred when it denied relief on
this claim, and Appellant is entitled to a new trial. We disagree.
We observe:
The weight of the evidence is exclusively for the
finder of fact who is free to believe all, part, or none
of the evidence and to determine the credibility of
the witnesses. An appellate court cannot substitute
its judgment for that of the finder of fact. Thus, we
may only reverse the…verdict if it is so contrary to
the evidence as to shock one's sense of justice.
Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d
666, 672–73 (1999). Moreover, where the trial court has
ruled on the weight claim below, an appellate court’s role
is not to consider the underlying question of whether the
verdict is against the weight of the evidence. Rather,
appellate review is limited to whether the trial court
palpably abused its discretion in ruling on the weight
claim.
Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa.Super. 2011), appeal
denied, 615 Pa. 783, 42 A.3d 1059 (2012).
Instantly, the Commonwealth presented testimony from Victim,
witnesses, police officers, and detectives. The jury had the opportunity to
assess the credibility of the witnesses and consider all the evidence
presented. Specifically, the jury was presented with the testimony of two
witnesses who identified Appellant as the perpetrator of the crimes. Further,
the jury heard the detectives testify why they saw no reason to conduct DNA
testing on Victim’s shirt. Given the evidence at trial, we see no reason to
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disturb the court’s decision to deny relief on Appellant’s weight claim. See
Devine, supra.
In his third issue, Appellant argues Dr. Ziv’s testimony did not provide
sufficient evidence that Appellant is an SVP. Appellant avers his offense did
not involve multiple victims, unnecessary means, or unusual cruelty.
Appellant contends he had no prior convictions for sexual offenses, and
Victim’s age did not demonstrate pedophilia. Appellant submits the
Commonwealth’s evidence was legally insufficient to show Appellant is an
SVP. Appellant concludes he is entitled to revocation of his status as an
SVP. We disagree.
In Commonwealth v. Prendes, 97 A.3d 337 (Pa.Super. 2014), this
Court observed:
“To deem an individual [an SVP], 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), appeal denied, 591 Pa. 709, 919 A.2d 954 (2007).
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.’” Askew, supra. When the Commonwealth
meets this burden, the trial court then makes the final
determination on the defendant's status as an SVP.
Commonwealth v. Kopicz, 840 A.2d 342, 351 (Pa.Super.
2003).
An SVP assessment is not a trial or a separate criminal
proceeding that subjects the defendant to additional
punishment. Commonwealth v. Howe, 842 A.2d 436,
445–46 (Pa.Super. 2004). SVP status, therefore, does not
require proof beyond a reasonable doubt; the court
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decides SVP status upon a show of clear and convincing
evidence that the offender is, in fact, an SVP.
Commonwealth v. Killinger, 585 Pa. 92, 104, 888 A.2d
592, 600 (2005).
Rule 702 of the Pennsylvania Rules of Evidence provides:
Rule 702. Testimony by Expert Witnesses
A witness who is qualified as an expert by
knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge is beyond that possessed by
the average layperson;
(b) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue; and
(c) the expert’s methodology is generally accepted
in the relevant field.
Comment:
Pa.R.E. 702 states that an expert may testify in the
form of an “opinion or otherwise.” Much of the
literature assumes that experts testify only in the
form of an opinion. The language “or otherwise”
reflects the fact that experts frequently are called
upon to educate the trier of fact about the scientific
or technical principles relevant to the case.
Pa.R.E. 702. “An expert may base an opinion on facts or
data in the case that the expert has been made aware of
or personally observed. If experts in the particular field
would reasonably rely on those kinds of facts or data in
forming an opinion on the subject, they need not be
admissible for the opinion to be admitted.” Pa.R.E. 703;
In re D.Y., 34 A.3d 177, 182–83 (Pa.Super. 2011), appeal
denied, 616 Pa. 638, 47 A.3d 848 (2012). “If the expert
states an opinion the expert must state the facts or data
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on which the opinion is based.” Pa.R.E. 705 and Comment
(explaining otherwise inadmissible facts and data
supporting expert opinion are considered only to explain
basis for expert's opinion, not as substantive evidence).
“Once expert testimony has been admitted, the rules of
evidence then place the full burden of exploration of facts
and assumptions underlying the testimony of an expert
witness squarely on the shoulders of opposing counsel’s
cross-examination.” In re D.Y., supra at 183. Opposing
counsel bears the burden of exposing and exploring “any
weaknesses in the underpinnings of the expert’s opinion.”
Id.
“With regard to the various assessment factors…, 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.” Commonwealth v. Brooks, 7
A.3d 852, 863 (Pa.Super. 2010), appeal denied, 610 Pa.
614, 21 A.3d 1189 (2011). Thus, “[t]he Commonwealth
does not have to show that any certain factor is present or
absent in a particular case.” Id. Moreover, “the absence
of an interview does not preclude the ability to evaluate
the offender's behavior through available history for
characteristics similar or dissimilar to the criteria set forth
in the law for defining a sexually violent predator.”
Commonwealth v. Woods, 909 A.2d 372, 381
(Pa.Super. 2006), appeal denied, 591 Pa. 714, 919 A.2d
957 (2007). Likewise, “to carry its burden of proving that
an offender is an SVP, the Commonwealth is not obliged to
provide a clinical diagnosis by a licensed psychiatrist or
psychologist…” Commonwealth v. Conklin, 587 Pa. 140,
158, 897 A.2d 1168, 1178 (2006). Additionally, the
statute requires all state, county, and local agencies,
offices or entities to provide copies of records and
information as requested by the SOAB [Sexual Offenders
Assessment Board] in connection with an SVP assessment.
42 Pa.C.S.A. § 9799.24(c). Importantly, the primary
purpose of the registration requirements is to help ensure
the safety of the public, not to punish the offender.
Commonwealth v. Carter, 821 A.2d 601, 606 (Pa.Super.
2003) (holding SOAB expert can review confidential
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psychiatric examinations performed when defendant was
juvenile to make SVP assessment).
Prendes, supra at 358-59.
Instantly, Appellant stipulated Dr. Barbara Ziv, a Board certified
psychiatrist working with the SOAB, was qualified to do the SVP evaluation.
Dr. Ziv testified that Appellant’s antisocial traits in combination with his
victimization of a stranger are associated with recidivism. Utilizing the
statutory factors, Dr. Ziv assessed Appellant and determined he exhibited
behaviors, characteristics, and a personality disorder, which made him likely
to reoffend. Dr. Ziv opined Appellant qualified as an SVP. After hearing the
testimony of a qualified expert, who stated the grounds for her opinions, the
court resolved Appellant’s SVP status. We see no reason to disturb this
decision. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/2014
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