J. A21016/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
v. :
:
MAURICE HICKADAY, :
:
Appellant : No. 1726 EDA 2015
Appeal from the Judgment of Sentence January 28, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002566-2014
BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 18, 2016
Appellant, Maurice Hickaday, appeals from the Judgment of Sentence
entered on January 28, 2015, in the Court of Common Pleas of Philadelphia
County following his no contest plea to Rape by Forcible Compulsion,
Indecent Assault by Forcible Compulsion, Carrying a Firearm without a
License, Possessing an Instrument of a Crime1 and his designation as a
Sexually Violent Predator (“SVP”) pursuant to 42 Pa.C.S. §§ 9799.10-
9799.41. After careful review, we affirm.
The factual history is not in dispute. On May 8, 2011, in the early
morning hours, Marian Shelton (“Victim”) was leaving the area near the
Sugarhouse Casino on Delaware Avenue in Philadelphia, Pennsylvania, when
1
18 Pa.C.S. § 3121(a)(1); 18 Pa.C.S. § 3126(a)(2); 18 Pa.C.S. §
6106(a)(1); and 18 Pa.C.S. § 907(a), respectively.
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Appellant, along with two other males, offered Victim and Victim’s friend a
ride. After Victim’s friend got out of the car, Appellant pointed a firearm at
Victim, took her to a nearby location, brought her inside a structure, and
engaged in non-consensual sexual intercourse with Victim. Victim sought
medical treatment, including a rape kit examination. The sperm that was
recovered from the rape kit was placed in the DNA database, and in 2013
there was a “CODIS result which led to the [Appellant’s] arrest.” Trial Court
Opinion, dated 11/3/15, at 3.
On July 22, 2014, Appellant appeared before the Honorable Timika
Lane and pled no contest to Rape by Forcible Compulsion and related
charges. Judge Lane sentenced Appellant to a term of 7 ½ to 15 years’
incarceration followed by 5 years of probation for the Rape charge, 7 years
of probation for Carrying a Firearm without a License, and 3 years of
probation for Possessing an Instrument of Crime. Judge Lane deferred
sentencing on the Indecent Assault charge.
On January 23, 2015, Judge Lane held a SVP hearing. The
Commonwealth entered into evidence the Sexual Offender Assessment
Board Report by Dr. Barbara Ziv (“Report”) and Dr. Ziv’s curriculum vitae
without objection from Appellant. The parties stipulated that Dr. Ziv was an
expert in her field and if called to testify, she would testify to the contents of
the Report, which concluded that Appellant met the criteria set forth in the
law for classification as a SVP. The parties further stipulated that there were
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some errors in Dr. Ziv’s Report regarding Appellant’s criminal history, but
also stipulated that Dr. Ziv communicated to the Commonwealth that the
corrections “would not alter her analysis and determination” that Appellant
meets the criteria to be a SVP. N.T. SVP Hearing, 1/23/15, at 5. Without
objection from the Commonwealth, Appellant entered into evidence a copy
of the personality disorder chapter from the Diagnostic and Statistical
Manual 5th Edition (“DSM-V”) and an Inmate Cummulative Adjustment
Record document from the Pennsylvania Department of Corrections.
Appellant did not present any witnesses. After holding her decision under
advisement, on January 28, 2015, Judge Lane found by clear and convincing
evidence that Appellant met the criteria for a SVP. Judge Lane sentenced
Appellant to “no further penalty” for the Indecent Assault charge and
ordered that Appellant was “subject to a lifetime registration with the
Pennsylvania State Police.” N.T. Sentencing, 1/28/15, at 3-4.
On February 6, 2015, Appellant filed a timely Post-Sentence Motion,
which was denied on June 2, 2015. Appellant timely appealed and both
parties complied with Pa.R.A.P. 1925.
Appellant raises the following issues on appeal:
1. Did not the Commonwealth fail to prove by clear and convincing
evidence that [A]ppellant met the statutory definition of a
“sexually violent predator” (SVP) where: a) the Commonwealth
failed to prove by clear and convincing evidence that [A]ppellant
suffered from Personality Disorder, NOS (not otherwise
specified); b) the Commonwealth failed to prove by clear and
convincing evidence that [A]ppellant was “likely” to engage in
future predatory sexual violence; and c) the Commonwealth
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failed to prove by clear and convincing evidence that [A]ppellant
suffers from a lifelong condition?
2. Did not the trial court abuse her discretion by giving too much
weight to the Commonwealth expert’s report in finding that
[A]ppellant met the statutory definition of SVP, and should not
the Commonwealth expert’s opinion be given little weight due to
the substantive inaccuracies and misrepresentations?
Appellant’s Brief at 4 (reordered for ease of disposition).
Appellant first avers that there was not sufficient evidence to
determine that Appellant met the criteria to be classified as a SVP,
specifically that the Commonwealth failed to prove by clear and convincing
evidence that Appellant suffers from a lifelong personality disorder that
makes it likely that Appellant will engage in future predatory sexual violence.
Appellant’s Brief at 4.
Appellant’s challenge to the sufficiency of the evidence to support the
trial court’s classification of Appellant as a SVP presents a question of law,
therefore our standard of review is de novo and our scope of review is
plenary. Commonwealth v. Meals, 912 A.2d 213, 218 (Pa. 2006). The
standard of proof governing the determination of SVP status is clear and
convincing evidence, which “requires evidence that is so clear, direct,
weighty, and convincing as to enable the trier of fact to come to a clear
conviction, without hestitency, of the truth of the precise facts in issue.” Id.
at 219 (quotation and citation omitted). When reviewing the sufficiency of
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evidence, we must consider the evidence in the light most favorable to the
Commonwealth, the prevailing party in the instant case. Id. at 218.
The procedure for “determining SVP status is statutorily-mandated and
well-defined.” Commonwealth v. Dixon, 907 A.2d 533, 535 (Pa. Super.
2006). Section 9799.24 mandates that a trial court order every individual
convicted of a sexually violent offense to be assessed by the Sexual Offender
Assessment Board (“SOAB”) prior to sentencing to determine whether that
individual qualifies as a SVP. 42 Pa.C.S. § 9799.24(a). A SVP is someone
who has been convicted of one of the statute’s enumerated offenses and
suffers from “a mental abnormality or personality disorder that makes the
individual likely to engage in predatory sexually violent offenses.” 42
Pa.C.S. § 9799.12; Dixon, supra at 537. The term “predatory” is further
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.
The statutorily-mandated assessment must include, but is not limited
to, an examination of the following to determine whether the individual
qualifies as a SVP:
(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.
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(ii) The nature of the sexual contact with the victim.
(iii) Relationship of the individual to the victim.
(iv) Age of the victim.
(v) 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. § 9799.24.
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After a careful review, and viewing the evidence in the light most
favorable to the Commonwealth, we conclude the evidence was sufficient
to support the trial court’s classification of Appellant as a SVP.
In the instant case, both parties stipulated to Dr. Ziv’s Report that
thoroughly addressed all of the statutorily mandated factors. In the Report,
Dr. Ziv concluded to a reasonable degree of professional certainty that
Appellant suffers from a lifelong mental abnormality or personality disorder
as defined in the statute, namely Unspecified Personality Disorder with
Antisocial Traits, that Appellant’s “behavior during the [i]nstant [o]ffense
does represent or correspond to the legal conception of ‘predatory,”’ and
that Appellant met the criteria set forth in the law for classification as a SVP.
SOAB Report, 9/17/14, at 9-10.
Appellant argues that Dr. Ziv did not make a “competent diagnosis”
because she determined that Appellant was suffering from an Unspecified
Personality Disorder with Antisocial Features but used the DSM-V criteria for
Antisocial Personality Disorder to justify this diagnosis. Appellant’s Brief at
10, 20. Appellant specifically argues that Dr. Ziv made a diagnosis “without
evidence of a conduct disorder prior to age fifteen as required by the DSM-
V.” Appellant’s Brief at 20. This argument fails for several reasons.
First, the SVP statute “does not require proof of a standard of
diagnosis that is commonly found and/or accepted in a mental health
diagnostic paradigm.” Commonwealth v. Dengler, 890 A.2d 372, 383
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(Pa. 2005). Rather, what is required is an analysis of the statutory factors.
Id. Here, as required, Dr. Ziv analyzed all of the statutorily-mandated
factors to determine that Appellant “suffers from a Mental
Abnormality/Personality Disorder as defined in the Act.” SOAB Report,
9/17/14, at 10. Appellant’s argument that Dr. Ziv did not use a specific
criteria “required by the DSM-V” is without merit.
Second, Dr. Ziv’s expert opinion is itself evidence. Meals, supra at
223–24. And, “[t]o the extent [Appellant] felt that the expert’s ‘diagnosis’
was not fully explained, did not square with accepted analyses of the
disorder, or was simply erroneous, he certainly was free to introduce
evidence to that effect and/or to argue to the factfinder that the
Commonwealth’s expert’s conclusions should be discounted or ignored. But
that argument would affect the weight, and not the sufficiency, of the
expert's evidence.” Id.
In this case, Appellant failed to cross-examine Dr. Ziv or introduce any
contradictory evidence. The uncontroverted evidence presented to the trial
court was an expert opinion that Appellant met the criteria for SVP. As such,
the trial court had sufficient evidence to designate Appellant a SVP. See
Meals, supra at 223-24 (citations and footnote omitted).
Appellant next avers that the trial court abused its discretion by giving
too much weight to Dr. Ziv’s Report and that the Report should have been
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given little weight due to substantive inaccuracies and misrepresentations.
Appellant’s Brief at 4. We disagree.
This Court’s standard of review of a weight of the evidence claim is for
an abuse of discretion. Commonwealth v. Ratushny, 17 A.3d 1269, 1272
(Pa. Super. 2011). Further, “it is not the function of the appellate court to
substitute its judgment based on a cold record for that of the trial court.
The weight to be accorded conflicting evidence is exclusively for the fact
finder, whose findings will not be disturbed on appeal if they are supported
by the record.” Id. (citation and quotation omitted).
Here, the trial court opined:
Defense counsel argues that Dr. Ziv’s report contained
inaccuracies. These errors were corrected during the SVP
hearing and brought to the trial court's attention. Both counsels
stipulated to the use of Dr. Ziv’s report. In addition, Dr. Ziv also
indicated that the errors would not alter her analysis and
determination that [Appellant] meets the criteria to be a SVP.
Further, defense counsel argued that Dr. Ziv erred when she
diagnosed [Appellant] with an Unspecified Personality Disorder,
but used the criteria of Antisocial Personality Disorder from the
DSM[-]V. The trial court finds Dr. Ziv’s professional analysis to
be accurate and credible. Further, her report concludes that
[Appellant] met the criteria for Unspecified Personality Disorder
with antisocial traits, negating defense counsel's argument that
Dr. Ziv erred when she used the Antisocial Personality Disorder
criteria. [Appellant]’s deviant sexual interest and personality
disorder places him with an increased recidivism risk. In
addition, a thorough review of the statutory factors supports the
classification of [Appellant] as a SVP. Therefore, the trial court’s
designation of [Appellant] as a SVP was not against the weight
of evidence.
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Trial Court Opinion, filed 11/3/15, at 10-11 (footnote and internal citations
omitted). As the record supports the trial court’s conclusions, we find no
abuse of discretion.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2016
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