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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JAMES E. MASKIL, JR., : No. 2066 WDA 2014
:
Appellant :
Appeal from the Order, November 20, 2014,
in the Court of Common Pleas of Washington County
Criminal Division at No. CP-63-CR-0000873-2013
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND SHOGAN, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 25, 2016
James E. Maskil, Jr., appeals from the November 20, 2014 order
entered in the Court of Common Pleas of Washington County that classified
him as a sexually violent predator (“SVP”). We affirm.
The record reflects that appellant was charged with one count each of
involuntary deviate sexual intercourse with a child, indecent assault with a
person less than 13 years of age, corruption of minors, and endangering
welfare of children.1 The charges resulted from allegations by the minor
victim, who was the daughter of appellant’s live-in girlfriend and who also
lived in the home, that appellant and his minor son forced her to engage in
sexual acts from the time that she was approximately 7 years old until she
1
18 Pa.C.S.A. § 3123(b), 18 Pa.C.S.A. § 3126(a)(7), 18 Pa.C.S.A.
§ 6301(a)(1)(ii), and 18 Pa.C.S.A. § 4304(a), respectively.
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was approximately 14. At the relevant times, appellant was approximately
36 to 43 years old.
After pleading no contest to one count of corruption of minors and one
count of endangering welfare of children, the trial court ordered appellant to
be assessed by the Sexual Offender Assessment Board (“SOAB”) to
determine whether he met the SVP criteria. The court also sentenced
appellant to 6 to 23 months of electronic home monitoring on the corruption
count and a consecutive 3-year term of probation on the endangering
welfare of children count. In return for his plea, the Commonwealth nolle
prossed the other two charges. Following the SVP hearing, the trial court
entered an order classifying appellant as an SVP. This appeal followed.
Appellant raises one issue for our review:
WHETHER THE HONORABLE TRIAL COURT ERRED IN
CLASSIFYING THE APPELLANT AS A SEXUALLY
VIOLENT PREDATOR WHERE THE COMMONWEALTH
FAILED TO PROVE BY CLEAR AND CONVINCING
EVIDENCE THAT THE APPELLANT IS A SEXUALLY
VIOLENT PREDATOR PURSUANT TO 42 PA. C.S.A.
§ 9799.12, WHERE THE COMMONWEALTH
PRESENTED INSUFFICIENT EVIDENCE AT THE
HEARING TO DETERMINE WHETHER THE TRIAL
COURT SHOULD CLASSIFY THE APPELLANT AS A
SEXUALLY VIOLENT PREDATOR?
Appellant’s brief at 3.
The standards governing our review of the sufficiency of the evidence
with respect to an SVP determination are well established:
A challenge to the sufficiency of the evidence is a
question of law subject to plenary review. We must
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determine whether the evidence admitted at [the
SVP hearing] and all reasonable inferences drawn
therefrom, when viewed in the light most favorable
to the Commonwealth as the verdict winner, is
sufficient to support all elements of the [statute]. A
reviewing court may not weigh the evidence or
substitute its judgment for that of the trial court.
At a hearing prior to sentencing the court shall
determine whether the Commonwealth has proved
by clear and convincing evidence that the individual
is a sexually violent predator. In reviewing the
sufficiency of the evidence regarding the
determination of SVP status, we will reverse the trial
court only if the Commonwealth has not presented
clear and convincing evidence sufficient to establish
each element required by the statute.
Commonwealth v. Evans, 901 A.2d 528, 534 (Pa.Super. 2006), appeal
denied, 909 A.2d 303 (Pa. 2006) (citations omitted; bracketed information
in original).
The Sex Offender Registration and Notification Act, 42 Pa.C.S.A.
§ 9791, et seq. (“SORNA”), defines a “sexually violent predator” as:
[a] person who has been convicted of a sexually
violent offense as set forth in § 9795.1 (relating to
registration) and who is determined to be a sexually
violent predator under § 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.
42 Pa.C.S.A. § 9792. SORNA 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
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menace to the health and safety of other persons.” Id. In turn, SORNA
defines “predatory” as “[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.
Among the relevant sections of SORNA, Section 9795.4 provides:
§ 9795.4. Assessments
(a) Order for assessment.--After conviction but
before sentencing, a court shall order an
individual convicted of an offense specified in
section 9795.1 (relating to registration) to be
assessed by the board. The order for an
assessment shall be sent to the administrative
officer of the board within ten days of the date
of conviction.
(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
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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 of the individual.
(ii) Use of illegal drugs by
the individual.
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(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. The above section delineates a non-exclusive list of
factors to consider in the SVP assessment of a defendant. It cannot be said,
however, that each factor will be of relevance in every case or that the
presence or absence of any of the enumerated factors will be decisive in the
determination. Commonwealth v. Meals, 912 A.2d 213, 222-223 (Pa.
2006).
Here, the trial court conducted the SVP hearing on November 18,
2014. The Commonwealth presented the testimony of
Julia Lindemuth, M.S., who has been a member of SOAB since 2010 and who
has been treating sexual offenders since 1999. (Notes of testimony,
11/18/14 at 7-8.) An investigator conducted appellant’s interview, and
Ms. Lindemuth reviewed that evaluation. (Id. at 15-16.) Although
Ms. Lindemuth offered appellant an interview on several occasions, he failed
to respond. (SVP assessment report, 6/8/14 at 3.) Ms. Lindemuth testified,
however, that the investigator’s evaluation contained sufficient information
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to generate an SVP assessment report. (Notes of testimony, 11/18/14 at
16-17.) The trial court admitted the report into evidence. (Id. at 10.)
In her testimony and in her report, Ms. Lindemuth stated that: the
current offense did not involve multiple victims; although appellant did not
exceed the means necessary to achieve the offense, he used his position as
the child’s father figure, as well as threats of groundings, and bribes to gain
compliance and silence; appellant received oral sex from the victim and, on
occasion, fondled her breasts; the victim viewed appellant as a father figure,
often referred to him as “dad,” and appellant acted as the child’s caretaker;
the onset of abuse was between the victim’s 7th and 8th birthdays and
continued until she was approximately 13 years old; there was no evidence
of unusual cruelty or sadistic sexual behavior; the victim did not have any
specific mental disabilities, but her young age and prepubescence made her
vulnerable; the victim was the previous victim of abuse, and the abuser was
appellant’s son; appellant’s prior adult offense history included multiple
driving under the influence convictions, criminal trespass, and charges
relating to appellant’s violation of a protection from abuse order; the onset
of abuse occurred when appellant was approximately 37 years old, and, as a
result, he met the age criteria for the DSM-5 for a mental disorder and/or
personality disorder; and appellant has a history of reckless and harmful
behavior towards others. (Id. at 19-21; SVP assessment report, 6/8/14 at
9-12.)
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Ms. Lindemuth determined that appellant suffers from pedophilic
disorder, nonexclusive type, as follows:
Based on the information available, [appellant]
meets the diagnostic criteria for Pedophilic Disorder
Non-Exclusive which is considered a congenital or
acquired condition. Pedophilic Disorder is defined by
the Diagnostic and Statistical Manual – Fifth Edition
(DSM-5)[2] as follows: “Over a period of at least 6
months, recurrent, intense sexually arousing
fantasies, sexual urges, or behaviors involving
sexual activity with a prepubescent child or children
(generally age 13 years or younger). The individual
has acted on these sexual urges, or the sexual urges
or fantasies cause marked distress or interpersonal
difficulty. The individual is at least age 16 year[s]
and at least 5 years older than the child or children.”
It is important to note that some individuals with
Pedophilic Disorder are only attracted to children,
which is referred to as Exclusive Type, whereas
others are also attracted to adults, this is referred to
as Non-Exclusive Type. [Appellant’s] behaviors are
consistent [with] Pedophilia, Non-Exclusive Type.
Individuals may deny experiences, impulses or
fantasies involving children and additionally they
may deny feeling distressed. The DSM-5 indicates
such individuals may still be diagnosed with
pedophilic disorder despite the absence of
self-reported distress, provided there is evidence of
recurrent behaviors persisting for 6 months and
evidence the individual has acted on sexual urges or
experienced interpersonal difficulties as a
consequence of the disorder.
SVP assessment report, 6/8/14 at 13 (emphasis in original).
2
The manual is a classification of mental disorders developed and published
under the auspices of the American Psychiatric Association.
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Ms. Lindemuth’s determination that appellant suffered from pedophilic
disorder, nonexclusive type, established the requirement that appellant had
a mental abnormality required for making a determination that he was an
SVP under SORNA. We further note that appellant’s expert did not dispute
Ms. Lindemuth’s conclusion that appellant suffers from pedophilic disorder.
With regard to the predatory nature of appellant’s acts, Ms. Lindemuth
stated:
[Appellant] was in a caretaker role, and was referred
to as “Dad” by the victim. He was a trusted family
member. The victim was a young prepubescent child
who had been raped by [appellant’s] juvenile son.
She approached [appellant] for help, by disclosing
the abuse perpetrated by his son. Instead of
protecting the child, [appellant] took advantage of
the situation and began to sexually assault the child.
He used threats and bribes to gain the child’s
compliance and silence. It is this Board Member’s
opinion that [appellant’s] behaviors meet the
statute[’s] definition of predatory.
SVP assessment report, 6/8/14 at 15.
The record, therefore, supports the finding that appellant’s acts were
predatory because he directed his acts at a child with who lived in his home
and who viewed him as a father figure, and he used that relationship to
facilitate his victimization. We note that appellant does not dispute
Ms. Lindemuth’s conclusion that appellant’s acts were predatory in nature.
The gravamen of appellant’s complaint is that there was insufficient
evidence that appellant would re-offend. The crucial evidence regarding the
question of whether appellant would re-offend was Ms. Lindemuth’s
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determination that appellant is a pedophile, a conclusion that appellant’s
expert did not disagree with. With respect to appellant’s likelihood of
re-offending, Ms. Lindemuth opined:
According to [DSM-5], Pedophilia appears to be a
lifelong condition. The behaviors may increase in
response to psychosocial stressors, in relation to
other mental disorders, or with increased opportunity
to engage in Paraphilia. The course of pedophilic
disorder may fluctuate, increase, or decrease with
age but remains a lifelong condition.
...
It is this Board Member’s opinion that Pedophilic
Disorder is the impetus behind [appellant’s] inability
to maintain his own volitional/emotional control. The
prolonged abuse signifies difficulty controlling his
sexual impulses and failing to adequately exhibit
control over his actions. The inability to control
deviant impulses is a result of the disorder.
...
There are two pathways known to be associated with
lifetime reoffending, chronic antisociality and sexual
deviancy. The behavior pattern in the instant
offense is consistent with chronic sexual deviancy.
[Appellant] sexually assaulted the child victim over
the course of several years which included multiple
instances of oral sex and fondling. Pedophilic
disorder is a long-term, persistent disorder and can
impair or affect a person’s ability to control such
impulses, thus increasing the likelihood of re-
offense. This pattern of behavior supports the
conclusion that [appellant’s] condition of Pedophilic
disorder increases the likelihood of re-offending.
SVP assessment report, 6/8/14 at 14-15.
Here, appellant identifies “the main conflict” between the experts to be
“their belief as to whether [a]ppellant was likely to re-offend in sexually
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victimizing a prepubescent child.” (Appellant’s brief at 8.) Appellant
contends that because appellant exhibited less than half of the factors
required for consideration by the SOAB, the Commonwealth’s evidence was
insufficient. We disagree.
It is well settled that the presence or absence of an enumerated factor
is not determinative in the SVP classification and that not all factors are
relevant in every case. Meals, 912 A.2d at 222-223. Moreover, it is not our
role to re-weigh the SVP classification factors, as appellant invites us to do.
Our role is to view the evidence admitted at the SVP hearing and all
reasonable inferences drawn therefrom in the light most favorable to the
Commonwealth as verdict winner and to determine whether that evidence
was sufficient to support the trial court’s order classifying appellant as an
SVP. We have done so, and based upon our careful review of the evidence
and testimony presented at the SVP hearing, we find that the
Commonwealth presented clear and convincing evidence to support the trial
court’s order that classified appellant as an SVP.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/25/2016
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