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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
ALLEN DALE McKINLEY, : No. 2152 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, December 16, 2014,
in the Court of Common Pleas of Bucks County
Criminal Division at No. CP-09-CR-0001977-2014
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 18, 2016
Allen Dale McKinley appeals from the December 16, 2014 aggregate
judgment of sentence of 9 to 30 years’ imprisonment, followed by 5 years’
probation, imposed after he pled guilty to statutory sexual assault, unlawful
contact with a minor, corruption of minors, and 3 counts each of aggravated
indecent assault -- person less than 16 years of age and indecent assault --
person less than 16 years of age.1 After careful review, we affirm.
The relevant facts of the case are as follows. On January 22, 2014,
Detective Daryl Lewis of the Pennridge Regional Police Department
interviewed a 17-year-old female victim, M.C., regarding a series of sexual
* Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3122.1, 6318, 6301, 3125(a)(8), and 3126(a)(8),
respectively.
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assaults that occurred at appellant’s home between 2009 and 2010. (Notes
of testimony, 7/29/14 at 41.) M.C. stated that appellant, a friend of her
family, had sexually assaulted her on multiple occasions while she was
between the ages of 12 and 14. (Id. at 41-42.) Specifically, M.C. reported
that appellant touched and fondled her breasts, kissed her breasts and
vagina, and inserted his fingers into her vagina on multiple occasions. (Id.
at 42-43.) M.C. further informed Detective Lewis that the sexual assaults
occurred once or twice a month between the ages of 13 and 14, and that on
at least two occasions, she had engaged in sexual intercourse with appellant.
(Id. at 43-44.) On February 6, 2014, appellant was subsequently arrested
after he acknowledged during an intercepted telephone conversation that he
had engaged in sexual contact with M.C. on multiple occasions. (Id. at
44-45.) At all relevant times during these incidents, appellant was 39 to
42 years of age. (Id.)
On February 7, 2014, appellant was charged with statutory sexual
assault, unlawful contact with a minor, corruption of minors, three counts of
aggravated indecent assault, and four counts of indecent assault. On
July 29, 2014, appellant pled guilty to all charges except one count of
indecent assault -- person less than 13 years of age,2 which was
nolle prossed upon motion of the Commonwealth. Sentencing was
deferred pending an evaluation by the Sexual Offenders Assessment Board
2
18 Pa.C.S.A. § 3126(a)(7).
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(“SOAB”) to determine whether appellant met the criteria for a sexually
violent predator (“SVP”). Following a hearing, the trial court entered an
order on December 16, 2014, classifying appellant as an SVP. That same
day, the trial court sentenced appellant to an aggregate term of 9 to
30 years’ imprisonment, followed by 5 years’ probation. On December 23,
2014, appellant filed a post-sentence motion for reconsideration of sentence.
Following a hearing, the trial court denied appellant’s motion on June 24,
2015. This timely appeal followed on July 15, 2015.3
On appeal, appellant raises the following issue for our review:
A. Did the trial court err in finding that the
Commonwealth established that appellant
meets the statutory criteria for classification as
[an SVP] as there was insufficient evidence to
establish appellant suffered from a mental
abnormality or personality disorder?
Appellant’s brief at 4. Specifically, appellant maintains that the
Commonwealth failed to establish that he suffers from a mental abnormality,
as there is no mental abnormality of hebephilia recognized by the DSM-IV or
ICD-10, the primary reference material of psychiatrists. (Id. at 13-14.)
The standard governing our review of the sufficiency of the evidence
with respect to an SVP determination is well established:
A challenge to the sufficiency of the evidence is a
question of law subject to plenary review. We must
determine whether the evidence admitted at [the
SVP hearing] and all reasonable inferences drawn
therefrom, when viewed in the light most favorable
3
Appellant and the trial court have complied with Pa.R.A.P. 1925.
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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 menace to the
health and safety of other persons.” Id. In turn, SORNA defines
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“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.
We begin by addressing whether appellant has properly preserved his
claim for appellate review. At the December 16, 2014 SVP hearing, the
Commonwealth presented the testimony of Dr. John M. Shanken-Kaye, a
15-year veteran of Pennsylvania’s SOAB who was qualified as an expert in
the assessment and treatment of adult sexual offenders. (Notes of
testimony, 12/16/14 at 5, 7.) Dr. Shanken-Kaye testified that he completed
an assessment of appellant based upon his “past history, past offenses [and]
past treatment . . . [.]” (Id. at 8-10.) Dr. Shanken-Kaye opined to a
reasonable degree of professional and psychological certainty that
“[appellant] me[t] the diagnostic criterion for something called Otherwise
Specified Paraphiliac Disorder, notably hebephilia or the sexual arousal and
attraction to pubescent females or females undergoing puberty, which is
considered a congenital or acquired condition.” (Id. at 14.) In reaching this
conclusion, Dr. Shanken-Kaye further explained that:
The victim was between the ages of 12 and 14
and -- according to the information given me. And
one of the delineations that I have to make or any of
the individuals doing these types of assessment have
to make, is whether this is an issue of pedophilia or
an issue of hebephilia or a different type of deviant
behavior.
In looking at sexuality or the sexual
development of boys and girls we can look at
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individuals that are prepubescent and that has a
wide age range. In the diagnostic manuals they will
speak of being up to 13 but we know that many
individuals begin puberty, particularly in current
times, as early as 7 or 8.
So there’s a long period of time called
pubescence, puberty, and that is typically between
the ages of about 10 and 14, sometimes 15. And
what differentiates it from full-fledged adolescence is
the fact that during that age range, particularly in
the lower end of the age range, the individual is
typically not fully sexually developed but is
undergoing sexual development.
And that is why there is a special category of
hebephilia for individuals that are attracted to boys
or girls that are in the early stages of puberty versus
individuals, for instance, that are only attracted to
people who have no developed sexual characteristics
at all.
Id. at 21-22.
The record reflects that appellant failed to challenge or object to
Dr. Shanken-Kaye’s diagnosis on the basis that it is not recognized in the
DSM-IV or ICD-10. Appellant also failed to present his own expert witness
on the diagnosis of hebephilia or cite to any legal authority in his appellate
brief to support the conclusion that SORNA requires that the diagnosis of a
mental abnormality appear in the DSM-IV or ICD-10. “[W]here an appellate
brief fails to provide any discussion of a claim with citation to relevant
authority or fails to develop the issue in any other meaningful fashion
capable of review, that claim is waived.” Commonwealth v. Rahman, 75
A.3d 497, 504 (Pa.Super. 2013) (citation omitted); see also
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Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court are waived and
cannot be raised for the first time on appeal[]”); Pa.R.A.P. 2117(c)
(requiring citation to place in record where issue has been preserved).
Accordingly, we conclude that appellant’s claim is waived.4
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2016
4
Alternatively, even if appellant had not waived his claim, we agree with the
trial court’s well-reasoned conclusion that the Commonwealth established by
clear and convincing evidence that appellant met the criteria for SVP status.
(See notes of testimony, 12/16/14 at 48-50; trial court opinion, 12/29/15 at
7.)
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Com. v. McKinley, A.
Combined Opinion