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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL LAWONE LAKE
Appellant No. 49 MDA 2016
Appeal from the Judgment of Sentence December 11, 2015
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0007090-2013
BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED SEPTEMBER 09, 2016
Appellant Michael Lawone Lake appeals from the December 11, 2015
judgment of sentence entered in the York County Court of Common Pleas.
He argues the trial court erred when it found Appellant was a sexually
violent predator (“SVP”). We affirm.
On March 2, 2015, Appellant pled guilty to corruption of minors,
indecent exposure, and unlawful contact with minor.1 The trial court ordered
a sex offender assessment pursuant to 42 Pa.C.S. § 9799.24. On December
11, 2015, the trial court held a hearing to determine whether Appellant was
an SVP. At the hearing, the Commonwealth presented the testimony of Dr.
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1
18 Pa.C.S. §§ 6301(a)(1), 3127, and 6318, respectively.
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Robert Stein. Appellant presented the testimony of Dr. Timothy Foley. Both
were accepted as experts.
Dr. Stein testified regarding the 15 factors to be considered when
determining whether someone is an SVP. N.T., 12/11/2015, at 7-13. Dr.
Stein found that Appellant suffered from other specified paraphilic disorder:
non-consent. Id. at 13-14. He also found Appellant’s behavior was
predatory. Commonwealth’s Exh. A, SVP Assessment, at 6. He concluded,
to reasonable degree of professional certainty, that Appellant met the
criteria to be classified as an SVP. N.T., 12/11/2015, at 14.
Dr. Foley testified that he also reviewed the 15 factors, as well as an
assessment tool known as Static 99. N.T., 12/11/2015, at 50-52. He
concluded Appellant did not meet the definition of an SVP and found
Appellant did not suffer from a mental abnormality. Id. at 51-52.
Following the hearing, the trial court found Appellant suffered from
other specified paraphilic disorder: non-consent and that the disorder
increased his likelihood of predatory behavior. N.T., 12/11/2015, at 58.
The court found the Commonwealth established by clear and convincing
evidence that Appellant met the definition of an SVP. Id. In its opinion
submitted pursuant to Pennsylvania Rule of Appellate Procedure 1925(a),
the trial court noted that Dr. Stein’s testimony was “particularly credible.”
1925(a) Opinion, filed 2/29/2016, at 10.
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On December 11, 2015, the same day as the SVP hearing, the trial
court sentenced Appellant to 2½ to 5 years’ imprisonment.2
On January 8, 2016, Appellant filed a notice of appeal. Both Appellant
and the trial court complied with Pennsylvania Rule of Appellate Procedure
1925.
Appellant raises the following issue on appeal:
Whether the trial court erred when it found that there was
clear and convincing evidence that [Appellant] was a
sexually violent predator?
Appellant’s Brief at 4.
A challenge to a trial court’s determination that a defendant is an SVP
is a challenge to the sufficiency of the evidence. Commonwealth v. Meals,
912 A.2d 213, 218 (Pa.2006). This Court’s standard of review is de novo
and our scope of review is plenary. Id. When reviewing a challenge to a
trial court’s SVP determination, this Court must view the evidence “in the
light most favorable to the Commonwealth.” Commonwealth v. Prendes,
97 A.3d 337 (Pa.Super.2014) (quoting Commonwealth v. Plucinski, 868
A.2d 20, 25 (Pa.Super.2005)). Further, this Court “may not weigh the
evidence or substitute its judgment for that of the trial court.” Id.
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2
The trial court imposed a sentence of 2½ to 5 years for both the corruption
of minors and indecent exposure convictions and a sentence of 1½ to 3
years for the unlawful contact with minor conviction. All sentences were
concurrent.
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Where a defendant has been convicted of a sexually violent offense, a
court shall order the Sexual Offenders Assessment Board (“SOAB”) to
conduct an assessment to determine whether the defendant is an SVP. 42
Pa.C.S. § 9799.24(a). Section 9799.24(b) governs assessments to
determine whether a defendant is an SVP and provides:
(b) Assessment.—Upon receipt from the court of an
order for an assessment, a member of the board . . . shall
conduct an assessment of the individual to determine if the
individual should be classified as a[n SVP]. 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.
(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:
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(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.
(4) Factors that are supported in a sexual offender
assessment field as criteria reasonably related to the risk
of reoffense.
42 Pa.C.S. § 9799.24(b).
Following the assessment, the trial court conducts a hearing to
determine whether the defendant is an SVP. This Court has explained:
“To deem an individual a[n 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, 919 A.2d 954
([Pa.]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
decides SVP status upon a show of clear and convincing
evidence that the offender is, in fact, an SVP.
Commonwealth v. Killinger, [] 888 A.2d 592, 600
([Pa.]2005).
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Prendes, 97 A.3d at 357-58. “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.” Id. at 355 (quoting Commonwealth v.
Plucinski, 868 A.2d 20, 25 (Pa.Super.2005)).
Further,
[T]here is no statutory requirement that all of [the
statutory factors] 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.2014)]. 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[n SVP].” Commonwealth v.
Woods, 909 A.2d 372, 381 (Pa.Super.2006), appeal
denied, 919 A.2d 957 ([Pa.]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, 897 A.2d 1168, 1178
([Pa.]2006).
Prendes, 97 A.3d at 358-590.
The trial court found:
[B]ased upon clear and convincing evidence presented by
the Commonwealth, [Appellant] (1) suffers from “Other
Specified Paraphilic Disorder: Non-Consent,” and (2) that
this disorder increases [Appellant’s] likelihood of predatory
behavior.
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At the hearing, the Commonwealth presented expert
testimony from Dr. Robert Stein, a licensed psychologist
and member of the SOAB. [Appellant] presented Dr.
Timothy Foley, a licensed psychologist in private practice.
This court accepted both witnesses as experts in the field
of sexual offender assessment after stipulations between
the Commonwealth and [Appellant]. (N.T. SVP Hearing,
12/11/15, at 3, 29.)
Dr. Stein, the Commonwealth’s expert witness, reviewed
the fifteen statutory factors . . . . (See Com.’s Ex. 1 at
numbered pages 4-5.) Based upon this review, Dr. Stein
testified it was his opinion that [Appellant] suffers from
Other Specified Paraphilic Disorder: Non-Consent. Id. at
6; (N.T. SVP Hearing, 12/11/15, at 9). In support of his
diagnosis, Dr. Stein highlighted various facts of the case,
including a more than two year duration of sexual abuse,
[Appellant’s] apparent sexual obsession with the victim,
and [Appellant’s] sexually deviant behaviors with the
victim over a period of greater than six months. Id. at 5.
Specifically, with respect to [Appellant’s] deviant behavior,
Dr. Stein cited the victim’s lack of consent both by age and
behavior, and that [Appellant] and victim were not
engaged in a dating relationship. Id. Further supporting
the deviance of [Appellant’s] acts, Dr. Stein testified he
found an “element of cruelty” in [Appellant’s] habit of
ejaculating into the victim’s mouth. (N.T. SVP Hearing,
12/11/15, at 7.) Dr. Stein also noted [Appellant’s]
“extensive antisocial history” as an aggravating factor in
forming his diagnosis. (Com.’s Ex. 1 at numbered page 5.)
Dr. Stein opined that [Appellant’s] disorder is an incurable,
lifetime condition and was the impetus to commit the
sexual offenses. Further, he concluded that this condition
overrode [Appellant’s] emotional or volitional control, and
that sufficient evidence existed that [Appellant] would
reoffend. Id.
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Dr. Stein posited that [Appellant’s] behavior with the
victim was predatory[3] in nature, as [Appellant] veiled his
sexually deviant acts under the guise [Appellant] was
protecting her from being raped. “Such convoluted
reasoning,” Dr. Stein stated in his report, “served to
establish, maintain and promote a sexually victimizing
relationship.” Id.
[Appellant] presented expert testimony from Dr. Timothy
Foley, who concluded in his professional opinion upon
review of the fifteen statutory factors, as well as an
assessment tool known as the “Static 99,” that [Appellant]
did not meet the definition of an SVP. (N.T. SVP Hearing,
12/11/2015, at 36.) Dr. Foley posited that [Appellant] did
not suffer from a “mental abnormality.” Id. at 37.
Dr. Foley raised questions regarding the diagnosis of Other
Specified Paraphilia: Non-Consent. In his opinion, a
specification of non-consent was “incredibly vague” making
[Appellant’s] diagnosis “unreliable.” (N.T. SVP Hearing,
12/11/2015, at 31, 37). Notably, however, Dr. Foley
admitted that their profession vests Dr. Stein with some
degree of flexibility in diagnosing [Appellant] with Other
Specified Paraphilia. Id. at 32.
Even assuming, arguendo, that Dr. Foley argued, and this
Court accepted as true, a diagnosis of a paraphilic
disorder: non-consent is not generally accepted in the field
of psychology, such evidence does not prohibit this court
from finding that he meets the definition of an SVP under
the statute. Commonwealth v. Dengler, [] 890 A.2d
372, 383 ([Pa.]2005) (“The [Megan’s Law] statute does
not require proof of a standard of diagnosis that is
commonly found and/or accepted in a mental health
diagnostic paradigm.”) Rather, the diagnosis upon which
this court relies must track the statutory constructs
promulgated by the General Assembly. Id.
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3
Predatory is defined 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.”
42 Pa.C.S. § 9799.12.
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This Court questioned Dr. Foley's credibility upon cross-
examination, when he skirted questions by the attorney for
the Commonwealth relating to whether [Appellant’s]
sexual acts with the victim were, in fact, sexually deviant.
Instead of answering the question directly, Dr. Foley - to
use his own language – “tried to parse” his response.9 Id.
at 39
9
Dr. Foley agreed “that committing a sexually
violent act towards an adolescent certainly deviates
from the norm.” Id. at 39.
This court found Dr. Stein’s expert opinion, which was
made within a reasonable degree of professional certainty,
particularly credible. Thus, this court found sufficient
evidence existed to support a finding that [Appellant]
meets the statutory definition as a[n SVP].
This court found the Commonwealth proved by clear and
convincing evidence that [Appellant] suffered from a
mental abnormality, Other Specified Paraphilia: Non-
Consent, and that [Appellant’s] behavior was predatory.
Resultantly, this court concluded that [Appellant] meets
the statutory definition of a[n SVP].
Pa.R.A.P. 1925(a) Opinion, filed 2/29/2016, at 6-10.
We agree with the trial court’s analysis and its conclusion that the
Commonwealth established, by clear and convincing evidence, that Appellant
was an SVP.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2016
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