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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DONNELL BARNES,
Appellant No. 1156 WDA 2015
Appeal from the Judgment of Sentence June 26, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001766-2014
BEFORE: SHOGAN, SOLANO, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 6, 2016
Donnell Barnes (“Appellant”) appeals from the judgment of sentence
imposed after he entered a plea of no contest to corruption of minors,
indecent assault, and endangering the welfare of a child. Specifically,
Appellant challenges his designation as a sexually violent predator (“SVP”).
We affirm.
The charges against Appellant stem from his sexual contact with the
victim when she was between the ages of eight and ten. Appellant was fifty
to fifty-three years old and the live-in boyfriend of the victim’s mother.
Following his plea of no contest, the trial court held an SVP and sentencing
hearing on June 26, 2015. Based on the expert testimony of Ms. Brenda
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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Manno, Appellant was designated an SVP and required to be a lifetime
registrant. He was sentenced to incarceration for an aggregate term of four
to eight years. Appellant did not file post-sentence motions.
Appellant filed a notice of appeal on July 24, 2015, and, along with the
trial court, complied with Pa.R.A.P. 1925. On appeal, Appellant presents the
following question for our consideration: “Whether the trial court abused its
discretion when it found Appellant to be a sexually violent predator as there
was insufficient evidence presented to support such a finding.” Appellant’s
Brief at 3 (full capitalization omitted).
Appellant challenges the sufficiency of the evidence supporting the trial
court’s SVP designation. Our standard and scope of review are well settled:
A challenge to the sufficiency of the evidence is a question
of law requiring a plenary scope of review. The appropriate
standard of review regarding the sufficiency of the evidence is
whether the evidence admitted at trial 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 the elements of the offenses. As a
reviewing court, we may not weigh the evidence and substitute
our judgment for that of the fact-finder. Furthermore, a fact-
finder is free to believe all, part or none of the evidence
presented.
Commonwealth v. Brooks, 7 A.3d 852, 860 (Pa. Super. 2010) (quoting
Commonwealth v. Haughwout, 837 A.2d 480, 484 (Pa. Super. 2003)
(citations omitted)).
In order to affirm an SVP designation, we, as a reviewing court,
must be able to conclude that the fact-finder found clear and
convincing evidence that the individual is an SVP. As with any
sufficiency of the evidence claim, we view all evidence and
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reasonable inferences therefrom in the light most favorable to
the Commonwealth. We will reverse a trial court’s determination
of SVP status only if the Commonwealth has not presented clear
and convincing evidence that each element of the statute has
been satisfied.
Commonwealth v. Hollingshead, 111 A.3d 186, 189 (Pa. Super. 2015),
appeal denied, 125 A.3d 1199 (Pa. 2015) (quoting Commonwealth v.
Baker, 24 A.3d 1006, 1033 (Pa. Super. 2011)) (internal brackets omitted).
This Court has explained the SVP determination process as follows:
After a person has been convicted of an offense listed in 42
Pa.C.S.A. § 9799.14, the trial court then orders an assessment
to be done by the SOAB to help determine if that person should
be classified as an SVP. An SVP is defined as a person who has
been convicted of a sexually violent offense and who has a
mental abnormality or personality disorder that makes the
person likely to engage in predatory sexually violent offenses. In
order to show that the offender suffers from a mental
abnormality or personality disorder, the evidence must show
that the defendant suffers from a congenital or acquired
condition 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.
Moreover, there must be a showing that the defendant’s conduct
was predatory. Furthermore, in reaching a determination, we
must examine the driving force behind the commission of these
acts, as well as looking at the offender’s propensity to reoffend,
an opinion about which the Commonwealth’s expert is required
to opine. However, the risk of re-offending is but one factor to
be considered when making an assessment; it is not an
independent element.
Hollingshead, 111 A.3d 189–190 (quoting Commonwealth v. Stephens,
74 A.3d 1034, 1038–1039 (Pa. Super. 2013)) (emphasis supplied; internal
brackets and ellipses omitted). Additionally:
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[w]hen performing an SVP assessment, a mental health
professional must consider the following 15 factors: whether the
instant offense involved multiple victims; whether the defendant
exceeded the means necessary to achieve the offense; the
nature of the sexual contact with the victim(s); the defendant’s
relationship with the victim(s); the victim(s)’ age(s); whether
the instant offense included a display of unusual cruelty by the
defendant during the commission of the offense; the victim(s)’
mental capacity(ies); the defendant’s prior criminal record;
whether the defendant completed any prior sentence(s);
whether the defendant participated in available programs for
sexual offenders; the defendant’s age; the defendant’s use of
illegal drugs; whether the defendant suffers from a mental
illness, mental disability, or mental abnormality; behavioral
characteristics that contribute to the defendant’s conduct; and
any other factor reasonably related to the defendant’s risk of
reoffending. See 42 Pa.C.S.A. § 9799.24(b).
Hollingshead, 111 A.3d 190.
With regard to the various assessment factors listed in
Section 9795.4, 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 check
list with each one weighing in some necessary fashion for or
against SVP designation. Rather, the presence or absence of one
or more factors might simply suggest the presence or absence of
one or more particular types of mental abnormalities.
Thus, while the Board is to examine all the factors listed
under Section 9795.4, the Commonwealth does not have to
show that any certain factor is present or absent in a particular
case. Rather, the question for the SVP court is whether the
Commonwealth’s evidence, including the Board’s assessment,
shows that the person convicted of a sexually violent offense has
a mental abnormality or disorder making that person likely to
engage in predatory sexually violent offenses. 42 Pa.C.S.A. §
9792. Having conducted a hearing and considered the evidence
presented to it, the court then decides whether a defendant is to
be designated an SVP and thus made subject to the registration
requirements of 42 Pa.C.S.A. § 9795.1(b)(3).
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Brooks, 7 A.3d at 862 (quoting Commonwealth v. Feucht, 955 A.2d 377,
381 (Pa. Super. 2008) (citations omitted)).
Appellant first argues “that the clear and convincing burden necessary
to determine whether he is a[n] SVP was not met by the Commonwealth as
the testimony presented was based on hearsay and failed to meet the
factors as outlined in SORNA.”1 Appellant’s Brief at 5. According to
Appellant, “the sole evidence the Commonwealth presented during the SVP
hearing was testimony from Brenda Manno. Ms. Manno, by her own
testimony, did not interview or examine the Appellant.[2] Her testimony was
based solely on police reports and the criminal complaint that was compiled
by an investigator. N.T. SVP Hearing at 7.” Id. at 6.
Upon review, we conclude that Appellant’s first argument is meritless.
In doing so, we adopt as our own, the well-reasoned analysis of the trial
court:
In preparing her assessment, Ms. Manno reviewed a
summary of the records and a report from the investigator
assigned to the case, which included police records, the criminal
complaint, the affidavit of probable cause and other related
records. Sentencing Transcript, June 26, 2015, (“N.T.”), p. 8.
Ms. Manno also reviewed records from Erie County Adult
Probation, the Pennsylvania Department of Transportation, the
Pennsylvania Board of Probation and Parole, and the letter
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1
Sex Offender Registration and Notification Act, 42 Pa.C.S. §§ 9799.10–
9799.41.
2
Ms. Manno explained that Appellant “declined to be interviewed.” N.T.,
6/26/15, at 16.
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submitted by Appellant’s counsel informing Ms. Manno Appellant
would [not] consent to an interview. N.T. p. [7,] 8.
At the SVP hearing, Appellant stipulated that Ms. Manno
was an expert qualified to offer an opinion as [to] whether
Appellant met the statutory criteria to be qualified a sexually
violent predator.3 N.T. p. 6. The realm of information an expert
can rely on in formulating an opinion can be broad.
“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. “If the expert states an
opinion the expert must state the facts or data 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., [34 A.3d 177, 182–
183 (Pa.Super.2011)]. Opposing counsel bears the
burden of exposing and exploring “any weaknesses
in the underpinnings of the expert’s opinion.” Id.
Commonwealth v. Prendes, 97 A.3d 337, 358
(Pa. Super. 2014).
3
Ms. Manno is a board member of the Sexual
Offender’s Assessment Board and a licensed clinical
social worker. N.T. p. 5. The parties stipulated at
trial that she was qualified to offer an opinion on
whether Appellant met the statutory definition for a
sexually violent predator. N.T. p. 6.
Trial Court Opinion, 9/9/15, at 4–5. Accord Commonwealth v. Prendes,
97 A.3d 337, 360–361 (Pa. Super. 2014), appeal denied, 105 A.3d 736 (Pa.
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2014) (“[An] SOAB expert’s opinion may be based on facts or data that the
expert has been made aware of or personally observed so long as experts in
the particular field reasonably rely on those kinds of facts or data in forming
an opinion on the subject; the facts or data consulted need not be
admissible for the expert’s opinion to be admitted.”). Furthermore, the trial
court found—and the record confirms—that “Ms. Manno testified extensively
about each statutory factor.” Trial Court Opinion, 9/9/15, at 5–6; N.T.,
6/26/15, at 8–13. Therefore, Appellant is not entitled to relief.
Appellant’s second argument is that the evidence was insufficient to
support his classification as an SVP, especially because he “had never before
been convicted of a sexual crime and did not use extraordinarily violent
means necessary to achieve the offense.” Appellant’s Brief at 9. In support
of his position, Appellant relies on Commonwealth v. Lipphardt, 841 A.2d
551 (Pa. Super. 2004), and Commonwealth v. Plucinski, 868 A.2d 20 (Pa.
Super. 2005). Appellant argues that his case should result in the same
dispositions reached in Lipphardt and Plucinski, i.e., a finding by this
Court that the evidence was insufficient to support an SVP classification.
Appellant’s Brief at 8.
Upon review, we first distinguish Appellant’s legal authority.
Lipphardt involved a defendant diagnosed with anti-social personality
disorder who committed a single sexual offense against a twenty-five-year-
old woman he did not know. In Plucinski, the defendant used his fourteen-
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year-old stepdaughter as a sexual surrogate for six months when his marital
relationship with the victim’s mother deteriorated. Unlike the defendants in
Lipphardt and Plucinski, Appellant repeatedly engaged in sexual contact
for more than six months with a child under the age of thirteen with whom
he lived, and he was likely to reoffend. Thus, Appellant’s reliance on
Lipphardt and Plucinski is unavailing.
Next, we reproduce with approval the trial court’s analysis:
Ms. Manno found Appellant to have the mental abnormality of
pedophilic disorder, a type of lifetime perophilic disorder. N.T. p.
10. A person is found to have pedophilic disorder if over a
period of at least six months, the person experienced recurrent
intense sexually arousing urges, fantasies or behaviors involving
a prepubescent child or children, which is generally age 13 years
or younger. N.T. pp. 10–11. The individual must be at least 16
years old and there must be at least 5 or more years difference
between the individual and the child. N.T. p. 11. The urges,
behaviors, or fantasies must have caused marked distress or
interpersonal difficulty. N.T. p. 11. Individuals who suffer from
this disorder are more likely to reoffend than someone who does
not have the disorder. N.T. p. 11.
Based in part on this disorder, Ms. Manno concluded
Appellant is likely to reoffend. In reaching this conclusion, Ms.
Manno also considered the victim was a prepubescent child,
outside the normative range of adult interest and there were
multiple incidents that occurred over an extended period of time.
N.T. pp. 11–12.
Ms. Manno also found that Appellant’s actions indicated
predatory behavior:
By statute, predatory is defined as an act
directed at a stranger or a person with whom a
relationship is initiated, established, maintained or
promoted, in whole or in part, in order to facilitate or
support victimization.
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I found that there was maintenance or
promotion of this relationship, at least in part, in the
fact that he lived with the family, that he utilized this
child on numerous occasions for sexual gratification.
N.T. p. 12.
Ms. Manno ultimately formulated an opinion to a
reasonable degree of professional certainty that Appellant met
the statutory criteria to be qualified a[n SVP]. N.T. p. 12.
Appellant offered no evidence to the contrary.
The [c]ourt accepted Ms. Manno’s opinion and her
supporting reasons in finding the Commonwealth met its burden
of proof to establish Appellant met the statutory criteria to be
classified a[n SVP].
Trial Court Opinion, 9/9/15, at 6–7.
Our review of the record substantiates the trial court’s determination
that the Commonwealth presented clear and convincing evidence that
Appellant met the statutory criteria to be classified as an SVP. N.T.,
6/26/15, at 8–13. Thus, we conclude that Appellant’s sufficiency challenge
lacks merit. Hollingshead, 111 A.3d at 189.
In discussing the facts of other cases and the absence of certain
statutory factors, Appellant is essentially asking this Court to reweigh them.
This we cannot do. Brooks, 7 A.3d at 863 (citing Commonwealth v.
Meals, 912 A.2d 213 (Pa. 2006) (holding that this Court erred in reweighing
the SVP evidence presented to the trial court; “the Superior Court stepped
beyond its authority when it reweighed the evidence, giving more weight to
the ‘absent’ factors than those found and relied upon by the trial court”)).
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Thus, because Appellant’s classification as a sexually violent predator is
supported by the record, we affirm Appellant’s judgment of sentence. Id.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2016
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