J-S58045-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRENDON CARUANO
Appellant No. 303 MDA 2016
Appeal from the Judgment of Sentence February 4, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0002632-2015
BEFORE: GANTMAN, P.J., BOWES, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 13, 2016
Appellant, Brendon Caruano, appeals from the judgment of sentence
entered in the Berks County Court of Common Pleas, following his open
guilty plea to aggravated indecent assault and corruption of minors.1 We
affirm.
The relevant facts and procedural history of this case are as follows.
Between January 2006 and December 2009, Appellant sexually abused his
minor cousin (“Victim”) on multiple occasions. Specifically, Appellant
penetrated Victim’s vagina with his fingers, exposed himself to Victim, and
put his mouth on Victim’s vagina. After Victim reported the abuse, the
____________________________________________
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18 Pa.C.S.A. §§ 3125(a)(7) and 6301(a)(1), respectively.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
J-S58045-16
Commonwealth charged Appellant with involuntary deviate sexual
intercourse with a child, aggravated indecent assault, indecent assault,
endangering welfare of children, indecent exposure, and corruption of
minors on May 29, 2015. On July 28, 2015, Appellant entered an open
guilty plea to aggravated indecent assault and corruption of minors, in
exchange for the court’s dismissal of the remaining charges against
Appellant. After accepting Appellant’s guilty plea, the court ordered the
Sexual Offender Assessment Board (“SOAB”) to assess Appellant and
determine if Appellant met the criteria for classification as a sexually violent
predator (“SVP”). The court deferred sentencing pending the preparation of
a pre-sentence investigation (“PSI”) report and Appellant’s SVP assessment.
SOAB member, Dr. Veronique Valliere, conducted Appellant’s SVP
assessment.
The court held a SVP hearing on February 4, 2016, where the
Commonwealth introduced the expert report prepared by Dr. Valliere. In
her report, Dr. Valliere stated Appellant suffers from paraphilic disorder,
which is a lifelong condition that overrides Appellant’s emotional and
volitional control. Dr. Valliere’s report also indicated Appellant exhibited
predatory behavior when he exploited his access to Victim to facilitate the
abuse. Dr. Valliere opined to a reasonable degree of professional certainty
that Appellant met the criteria for classification as a SVP.
Appellant presented the testimony of Dr. Timothy Foley, who also
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conducted a SVP assessment of Appellant. Dr. Foley agreed with Dr.
Valliere’s paraphilic disorder diagnosis; however, Dr. Foley asserted certain
modifications applied to the diagnosis, which significantly decreased
Appellant risk of recidivism. Dr. Foley opined Appellant does not meet the
criteria for classification as a SVP due to the unlikelihood that he will engage
in future predatory behavior. After consideration of the expert reports and
testimony, the court imposed SVP status based on its finding that Appellant
suffers from paraphilic disorder, which makes him likely to engage in
predatory sexually violent offenses.
Immediately following the SVP hearing, the court sentenced Appellant
to a term of twenty-two (22) to seventy-two (72) months’ incarceration for
the aggravated indecent assault conviction followed by a consecutive term of
sixty (60) months’ probation for the corruption of minors conviction. On
February 22, 2016, Appellant timely filed a notice of appeal. On February
24, 2016, the court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely
complied on March 15, 2016.
Appellant raises the following issue for our review:
WHETHER THE TRIAL COURT ERRED IN
CLASSIFYING…APPELLANT AS A [SVP] WHERE THE
COMMONWEALTH FAILED TO PROVE BY CLEAR AND
CONVINCING EVIDENCE THAT APPELLANT MEETS THE
STATUTORY CRITERIA DESIGNATING HIM TO BE A [SVP]
BECAUSE THE COMMONWEALTH FAILED TO PROVE THAT
[APPELLANT’S] MENTAL ABNORMALITY MAKES IT LIKELY
THAT HE WILL ENGAGE IN FUTURE SEXUALLY VIOLENT
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PREDATORY OFFENSES?
(Appellant’s Brief at 4).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Paul M.
Yatron, we conclude Appellant’s issue on appeal merits no relief. The trial
court opinion fully discusses and properly disposes of the question
presented. (See Trial Court Opinion, filed April 12, 2016, at 2-6) (finding:
Appellant’s Rule 1925(b) statement fails to state with any specificity what
court failed to consider when it determined Appellant met criteria for
classification as SVP; thus, Appellant’s claim is waived; even if not waived,
Appellant’s claim warrants no relief; Appellant admitted sexually abusing
Victim multiple times between 2006 and 2009; specifically, Appellant
admitted he digitally penetrated and put his mouth on Victim’s vagina; Dr.
Valliere prepared report based on her SVP assessment of Appellant, which
analyzed relevant factors pursuant to Section 9799.24; Dr. Valliere’s report
specifically noted that Appellant exploited his access to Victim and used his
public persona as police officer to camouflage his deviant sexual arousal and
abuse of Victim; Dr. Valliere opined Appellant suffers from paraphilic
disorder, which is lifetime condition that overrides Appellant’s emotional and
volitional control; Dr. Valliere concluded Appellant meets criteria for
classification as SVP; Appellant presented expert testimony of Dr. Foley, who
also performed SVP assessment of Appellant; while Dr. Foley agreed with Dr.
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Valliere that Appellant suffers from paraphilic disorder, Dr. Foley opined
Appellant has low likelihood of reoffending; after reviewing expert reports
and testimony, court concluded Appellant met criteria for classification as
SVP based on his diagnosis of paraphilic disorder and his predatory behavior
toward Victim; therefore, Commonwealth proved by clear and convincing
evidence that Appellant met criteria for classification as SVP). Accordingly,
we affirm on the basis of the trial court’s opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/2016
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Circulated 09/22/2016 12:32 PM
COMMONWEALTH OF IN THE COURT OF COMMON PLEAS OF
PENNSYLVANIA BERKS COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
v;
No. CP-06-CR-0002632-2015
BRENDON CARUANO,
APPELLANT PAUL M. YATRON, PRESIDENT JUDGE
Attorney for the Commonwealth
Attorney for the Appellant on Appeal
Andrea E. Mertz, Esq., Attorney for the Appellant at Trial
192S(a) Opinion April 12, 2016
On July 28, 2015, Brendon Caruano ("Appellant") pied guilty to aggravated indecent
assault and corrupting the morals of a minor'. Appellant was thereafter evaluated by the
Pennsylvania Sexual Offenders Assessment Board ("SOAB"), and based on their report, the
Commonwealth requested a hearing. A hearing was held on February 4, 2015, and we found that
Defendant met the criteria for classification as a sexually violent predator. Appellant was
sentenced the same day to an aggregate sentence of not less than twenty-two (22) nor more than
seventy-two (72) months' incarceration, followed by a probationary term of five (5) years.
Appellant filed a notice of appeal on February 4, 2016, and we directed him to file a
concise statement of errors pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate
Procedure.
The concise statement was timely filed on March 15, 2016. Appellant raises the
following matters for appellate review:
1. The trial court erred in finding that the Defendant was a sexually violent predator since
the Commonwealth failed to prove by clear and convincing evidence that the Defendant
met the criteria to be classified as a sexually violent predator.
2. The sexually violent predator finding was against the weight of evidence and failed to
meet the burden of proof to designate Defendant an SVP.
CONCISE STATEMENT, September 8, 2015.
118
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81~noJ :10 >H.Eno
1
Discussion
The purpose ofrequiring a Concise Statement is so that trial judges can identify which
issues to focus on. The Pennsylvania Supreme Court has held that after "a Concise Statement of
Matters Complained of on Appeal [is filed], any issues not raised in such a statement will be
waived." Commonwealth v. Dowling, 778 A.2d 683, 686, (Pa. Super. 2001) (citing
Commonwealth v. Lord, 719 A.2d 306, 308 (1998)) Furthermore, from the progeny of this case,
when a Concise Statement is so vague as to prevent meaningful review, and thus impede
pertinent legal analysis, such issues raised are also waived. Commonwealthv. Butler, 756 A.2d
55, 57 (Pa.Super. 2000). In other words, vague statements are the equivalent to no statement at
all and result in forfeiture of that issue on appeal. See Dowling, 778 A.2d at 687.
Here, Appellant complains that "the Commonwealth failed to prove by sufficient clear
and convincing evidence that Appellant meets the statutory criteria classifying him as an SVP."
CONCISE ST A TEMENT at , 1. Appellant fails to state with any specificity how we failed to classify
him as a SVP. Furthermore, in Appellant's second issue for appeal, Appellant merely states that
the "weight of evidence failed to meet the burden of proof to designate Appellant an SVP." ·
CONCISE STATEMENT at 12. To make its determination we relied upon many factors, Appellant
fails to allege with any specificity that the factors we relied upon failed to meet the burden of
proof. The vagueness of Appellant's statements defeats the purpose of a concise statement and
hinders pertinent legal analysis. As a result, the issues raised by Appellant should be considered
waived.
Even if the issues are not waived, Appellant would not be entitled to relief. To reiterate,
Appellant claims that the Commonwealth failed to prove by clear and convincing evidence that
he meets the statutory criteria to be classified as a sexually violent predator. CONCISE
STATEMENT at ,1. This claim is without merit.
The following standard applies to the review of a trial court's determination of a
defendant's SVP status:
The determination of a defendant's SVP status may only be made following an
assessment by the Board and hearing before the trial court. 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 a sexually
violent predator." Commonwealth v. Krouse, 799 A.2d 835, 840 (Pa.Super.2002)
(en bane), appeal denied, 573 Pa. 671, 821 A.2d 586 (2003); see also
Commonwealth v. Meals, 590 Pa. 110, 127, 912 A.2d 213, 223 (2006) (the task of·
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the Superior Court on appeal of a trial court's classification of a criminal offender
as a sexually violent predator "is one of review, and not of weighing and
assessing evidence in the first instance."). As with any sufficiency of the evidence
claim, we view all evidence and 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 sufficient to enable the trial court to determine that each element of the
statute has been satisfied." Krouse, 799 A.2d at 838.
Commonwealth v. Geiter, 929 A.2d 648, 650 (Pa. Super. 2007) (footnotes omitted).
Appellant admitted to the following facts during the guilty plea colloquy conducted on
March 6, 2015:
District Attorney: By pleading guilty, do you admit to the following facts:
That you have a date of birth of. . ·· ·; that the
victim in this case has a date of birth of ···
. and on multiple occasions between the years of 2006
and 2009, at the location of
that you sexually abused the female victim having a date of
birth of specifically through such measures of
taking your finger and penetrating her vagina, as well as
putting your mouth on her vagina?
The Defendant: Yes.
The SOAB assessment of Appellant was conducted by Veronique N. Valliere, Psy.D. The
report indicates that Appellant did not participate in an interview. SEXUALL y VIOLENT PREDATOR
ASSESSMENT at 1. The report also provides a detailed description of the underlying offense,
including that the victim was the Appellant's cousin who was between the ages of six and eight
when the abuse occurred. Id. at 2. Further, the report considers that the Appellant admits on
multiple occasions that he "put his finger in her vagina" and "put his mouth on her genitals." Id.
The report next analyzes the fourteen factors provided by 42 Pa.C.S.A. § 9799.24. The
statute provides as follows:
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.
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(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:
(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.A. § 9799.24.
Dr. Valliere's analysis of the Section 9799.24(b)(4) summarizes Appellant's background
further. SEXUALLY VIOLENT PREDATOR ASSESSMENT at 3. Appellant does not have a criminal
history or history of substance abuse. His actions did not involve multiple victims, however took
place on multiple instances. Id. at 4. Yet, it especially troubling that Appellant exploited his
access to the victim and used his public persona as a police officer to "camoflag[ e] his deviant
sexual arousal and abuse of a child.'' Id. at 5 Further, Dr. Valliere was able to diagnosis
Appellant with paraphlic disorder, because: (1) he was over the age of 18 at the time of the
offense; (2) his fantasies, urges, and/or behaviors motivated the sexual abuse; (3) the impact that
the events has had on Appellant's life quality and his own admitted sexual arousal to the victim.
Based upon the above factors, Dr. Valliere determined that Appellant meets the
diagnostic criteria for Paraphilic Disorder and a Personality Disorder; she further concluded that
both are lifetime conditions that have overridden Appellant's emotional or volitional control. Id.
4
at 6-7. The report concludes that "with a reasonable degree of professionally certainty that Mr.
Caruano MEETS the criteria to be classified as a Sexually Violent Predator under the Act."
SEXUALLY VIOLENT PREDATOR ASSESS:MENT at 5.
An SVP hearing was conducted on February 4, 2016. Dr. Timothy Foley, Ph. D,
Appellants expert, testified and was stipulated as art expert during the hearing. SVP HEARING
AND SENTENCING at 4. On direct examination, Dr. Foley summarized his report and explained
his reasons to find that Appellant was not a sexually violent predator. The crux of his argument
was that the statistical likelihood of reoffending, according to the Static-99, was "low risk" Id. at
15, 19. Under the Static-99, Dr. Foley found two factors that increased the chance of
reoffending. These were that Appellant was under the age of 3 5 and has never lived with a sexual
partner. Id. at 12. Upon reviewing the reports of both experts and the testimony of Dr. Foley, we
concluded that Appellant was a sexually violent predator. Id. at 22.0ur reasoning was that
statistical likelihood should not be considered a factor in our decision. Id. In the alternative,
certain conditions alone are sufficient to carry the burden of proof. Id.
Following the SVP hearing, we found that Appellant characteristics make him likely to
engage in predatory sexually violent offenses. We accordingly concluded that the
Commonwealth proved by clear and convincing evidence that Appellant meets the criteria to· be
classified as a sexually violent predator. Given the totality of Dr. Valliere's detailed report and
Dr. Timothy Foley's testimony, it is difficult to imagine any other conclusion under our current
jurisprudence.
Furthermore, Appellant alleges that we failed to meet the burden of proof to designate
him as a sexually violent predator. Though it is not explicitly addressed in the concise statement,
Appellant may reiterate his argument that the definition of "predatory" has IJ.Ot been satisfied.
We disagree. Our law defines "predatory" as follows: "An 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.A. § 9799.12.
Appellant exploited his access to the victim and used his public persona as a police officer to
"camoflag[e] his deviant sexual arousal and abuse of a child." SEXUALLY VIOLENT PREDATOR
ASSESS:MENT at 5. He initiated his abuse of the victim over several years by locking his bedroom
door and removing her pants and underwear. Id. Appellant would then proceed to "put his finger
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in her vagina .... [and] his mouth on her genitals." Id. Appellant's behavior was clearly
predatory under the statutory definition..
This Court respectfully requests that the instant appeal be DENIED.
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COUNTY OF BERKS, Pit .... ~SYLVANIA
Clerk of Courts
Courthouse, 4th Floor
633 Court Street
Reading, PA 19601-3585 Phone: 610.478.6550
BethAnn G. Hartman, Chief Deputy James P. Troutman, Clerk of Courts
James M. Polyak, Solicitor
Daryl F. Moyer, Solicitor, Emeritus
PROOF OF SERVICE Docket No. cib:)c)-f5
• certify that I served the within documents upon the following:
}>4 District Attorney ) Solicitor ) Prison Society ) CVS
( ) Public Defender ) Court Reporter ) Controller ) Ct Admin
( ) Adult Probation ) Prothonotary ) commissioner ) GAL
( ) Bureau of Traffic Safety ) Sheriff ) Bar Association
( ) Reading Central Court )MHMR ) ReadingEagle
( ) Law Library ) Dr. Rotenberg ) Beth
( ) BCP Records )TASC ) Computer
J' Defendant and/or Claimant by mailed a certified copy thereof to the following address:
On the day of _, 20
;'~(
\/ Defendant's attorney by mailing a certified copy thereof to:
On the
LJffiday of _-+µ-p_._(_/
Ii LI _,. J
20..lJQ_.
!
Statements in this proof of service are made subject to the penalties for unsworn falsification to
authorities under the Crimes Code 4904 (18 PACS 49041.
r v
Signature of Server
Dedicated to public service with integrity, virtue & excellence
www .countyofberks.com
Docket No.: CP-06-CR-0002632-2015 Address Sheets
Date Mailed: 04/13/2016
File Copy Recipient List
Addressed To: Brendon Caruana (Defendant)
#MK0422
SCI Graterford
PO Box244
Graterford, PA 19426-0244
Andrea E. Mertz (Private)
Waldman Law Group PC
711 Spring St Ste 100
Wyomissing, PA 19610