The opinion
J-A11029-24
J-A11030-24
2024 PA Super 229
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GREGORY SCOTT PERSON :
:
Appellant : No. 1249 MDA 2023
Appeal from the Judgment of Sentence Entered May 16, 2023
In the Court of Common Pleas of Clinton County
Criminal Division at No: CP-18-CR-0000323-2021
__________________________________________________________
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
:
GREGORY SCOTT PERSON :
: No. 1250 MDA 2023
Appeal from Order Entered August 2, 2023
In the Court of Common Pleas of Clinton County
Criminal Division at No: CP-18-CR-0000323-2021
BEFORE: BOWES, J., STABILE, J., and MURRAY, J.
OPINION BY STABILE, J.: FILED OCTOBER 01, 2024
These cross-appeals, which we consolidate for disposition pursuant to
Pa.R.A.P. 513, include (1) an appeal by Gregory Scott Person from his
judgment of sentence for corruption of minors and interference with custody
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of children,1 and (2) an appeal by the Commonwealth from an order granting
Person’s2 post-sentence motion for judgment of acquittal on the charge of
unlawful contact with minor — obscene and other sexual materials. We affirm
both the judgment of sentence and the order granting judgment of acquittal.
The record reflects that in June 2021, Appellant, a fifty-year-old man,
contacted the victim, a thirteen-year-old girl, through Facebook Messenger
and requested her to wear pantyhose without underwear for one day every
week and then give the pantyhose to Appellant.3 Appellant promised to supply
the victim with money and tobacco products.
On June 16, 2021, Appellant met the victim at her residence. He then
drove the victim to a retail store in his car, purchased tobacco products for
her, and drove her home. The entire episode took about 22 minutes.
The victim’s mother discovered a vape pen that Appellant purchased for
the victim, at which point the victim told her mother about her interactions
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1 This Court’s prothonotary initially captioned this appeal as being taken from
the “judgment of sentence entered August 2, 2023.” We have amended the
caption to state the correct date of sentence, May 16, 2023.
2 Although Person is the appellee in the Commonwealth’s appeal, we will refer
to him throughout this memorandum as “Appellant” for the sake of
consistency.
3 The Commonwealth also alleged that Appellant requested the victim to
provide photos of her in pantyhose without underwear. A state trooper
testified during trial, however, that Appellant did not request photos. N.T.,
10/18/22, at 149-53. Near the conclusion of trial, the Commonwealth
admitted that it had no such photos, and the allegation was stricken from the
charges. Id. at 165-66.
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with Appellant. The victim’s mother contacted the police to report Appellant’s
conduct toward the child.
Appellant was charged with the offenses referenced above, as well as
the summary offense of sale of tobacco to a minor. Following a preliminary
hearing in which the charges were held for court, Appellant filed a motion for
writ of habeas corpus alleging that the Commonwealth lacked sufficient
evidence to substantiate the charges. The trial court denied the motion but
advised that Appellant could move for judgment of acquittal at a later point.
At the close of evidence during trial, Appellant moved for judgment of
acquittal, and the trial court denied the motion. The jury found Appellant
guilty of corruption of minors, interference with custody of children, and
unlawful contact with a minor.4 On May 16, 2023, the trial court determined
that Appellant was an SVP and sentenced him to an aggregate prison term of
five to nineteen years, followed by three years of probation.
Appellant filed timely post-sentence motions challenging the sufficiency
of the evidence. In an opinion and order dated August 2, 2023, the trial court
held that the evidence was sufficient to sustain Appellant’s convictions for
corruption of minors and interference with custody of children but was
insufficient to sustain his conviction for unlawful contact with a minor. The
trial court vacated the latter conviction, along with the sentence as to that
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4 The trial court, sitting without a jury, found Appellant guilty of selling tobacco
to a minor. This conviction is not at issue in these appeals.
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count. The trial court further ordered that “in all other aspects, [Appellant’s]
sentence shall remain in full force and effect.” Order, 8/2/23.
On September 1, 2023, Appellant timely filed a notice of appeal as to
his judgment of sentence. On September 8, 2023, the Commonwealth cross-
appealed the portion of the August 2, 2023, order granting judgment of
acquittal on the unlawful contact charge.
Appellant raises three issues in his appeal:
1. Was [the] evidence insufficient to convict, as the subject
Facebook messages in Count One were not obscene, were actually
jokes and were protected free speech and the purported
interference in Count Three was too brief to support conviction?
2. Was the conviction against the weight of the evidence where
the subject Facebook messages in Count One were not obscene,
were actually jokes and were protected free speech and the
purported interference in Count Three was too brief to support
conviction?
3. Was Appellant’s designation as an SVP erroneous as the
Commonwealth’s expert erroneously recalled a report date, report
source, video evidence, number of messages and prior record of
Appellant?
Appellant’s Brief at 8 (appeal at docket number 1249 MDA 2023).
The Commonwealth raises a single issue in its cross-appeal:
Whether the trial court committed an error of law/abuse of
discretion in granting [Appellant’s] Motion for Post-Trial Relief
concerning the sufficiency of evidence in his conviction on Count
2: Unlawful Contact with a Minor, overturning the jury verdict of
guilty on said count, despite the trial court already weighing the
sufficiency of the evidence denying [Appellant’s] pre-trial Habeas
Corpus Petition and denying [Appellant’s] Motion for Judgment of
Acquittal after the close of [the] Commonwealth[’s] evidence?
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Commonwealth’s Brief, at 7 (appeal at docket number 1250 MDA 2023).
Appellant argues in a single question that the evidence was insufficient
to sustain his convictions for corruption of minors (18 Pa.C.S.A. §
6301(a)(1)(i)) and interference with custody of children (18 Pa.C.S.A. §
2904(a)).5 We disagree.
The standard we apply in reviewing the sufficiency of the evidence is
whether viewing all the evidence admitted at trial in the light most
favorable to the verdict winner, there is sufficient evidence to
enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence.... Finally, the finder of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Brockman, 167 A.3d 29, 38 (Pa. Super. 2017).
The statutory offense of corruption of minors provides in relevant part:
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5 Appellant purports to raise three sufficiency challenges in a single question
in his brief. See Appellant’s Brief at p.12-15. We remind counsel that our
appellate rules require that the argument section of a brief is to be divided
into as many parts as there are questions to be argued. See Pa.R.A.P 2119.
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(1)(i) Except as provided in subparagraph (ii),6 whoever, being of
the age of 18 years and upwards, by any act corrupts or tends to
corrupt the morals of any minor less than 18 years of age, or who
aids, abets, entices or encourages any such minor in the
commission of any crime, or who knowingly assists or encourages
such minor in violating his or her parole or any order of court,
commits a misdemeanor of the first degree.
18 Pa.C.S.A. § 6301(a)(1)(i). “Actions that tend to corrupt the morals of a
minor are those that would offend the common sense of the community and
the sense of decency, propriety and morality which most people entertain.”
Commonwealth v. Sebolka, 205 A.3d 329, 339 (Pa. Super. 2019).
Appellant first challenges the evidentiary sufficiency of his conviction for
corruption of minors on the ground that the Commonwealth failed to
demonstrate that his Facebook messages to the victim were obscene.
Obscenity, however, is not an element of the crime of corruption of minors.
See 18 Pa.C.S.A. § 6301(a)(1)(i). Nor does this Court define the statutory
element - “tends to corrupt the morals of a minor” - to require proof of
obscenity. Sebolka, supra. Thus, whether the Facebook messages were
obscene is irrelevant as to the sufficiency of the evidence of guilt, and no relief
is due on that ground.
Appellant next argues that his dialogue is protected under the First and
14th Amendments to the U.S. Constitution, as well as Article One, Section
Seven of the Pennsylvania Constitution. The totality of Appellant’s argument
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6 Subparagraph (ii) upgrades the offense to a third-degree felony under
certain circumstances. 18 Pa.C.S.A. § 6301(a)(1)(ii). Appellant was not
found guilty under this subparagraph.
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in support of these multiple constitutional challenges is that “[t]he
Commonwealth pursued prosecution because of a topic that was joked about
in a message. But the Commonwealth cannot proscribe speech because it
does not like the ideas expressed or because the ideas are unpopular.
Commonwealth v. Knox, 190 A.3d 1146, 1154 (Pa. 2018).” Appellant’s
Brief at 13-14. We need not elaborate as to why the whole of this argument
is woefully insufficient to permit appellate review, as the deficiencies are self-
evident. See Commonwealth v. McLaurin, 45 A.3d 1131 (Pa. Super. 2012)
(“As Appellant has cited no legal authorities nor developed any meaningful
analysis, we find this issue waived for lack of development.”). These
arguments are waived.
Similarly, Appellant challenges the constitutionality of Section
6301(a)(1)(i) of the corruption of minors statute upon the basis that the
phrase “any act which corrupts or tends to corrupt the moral of a minor,” is
vague and indefinite. Like his previous challenge, the argument presented is
woefully undeveloped and is limited to the following: “It is vague and
indefinite. Police and prosecutors have unbridled discretion to pursue what
they personally believe triggers the statute. Additionally, that which ‘corrupts
or tends to corrupt’ lends itself to harsh and discriminatory enforcement based
on personal predilections of the Commonwealth. Commonwealth v.
Morgan, 331 A.2d 444, 445 (Pa. 1975).” Appellant’s Brief at 14. We could
deem this claim waived as well, but choose not to do so, since this issue
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already has been decided in Commonwealth v. Randall, 133 A.2d 276 (Pa.
Super. 1957).
At the outset, we observe that when considering whether a statute is
unconstitutionally vague it first must be determined whether the challenge is
a facial challenge or only one as applied to the defendant’s conduct:
... [W]e note that vagueness challenges may be of two
types. First, a challenge of facial vagueness asserts that
the statute in question is vague when measured against
any conduct which the statute arguably embraces.
Second, a claim that a statute is vague as applied
contends the law is vague with regard to the particular
conduct of the individual challenging the statute.
For a court to entertain challenges of facial vagueness,
the claims must involve First Amendment issues. When
a case does not implicate First Amendment matters,
vagueness challenges are to be evaluated in light of the
facts at hand — that is, the statute is to be reviewed as
applied to the defendant's particular conduct.
Commonwealth v. Habay, 934 A.2d 732, 738 (Pa. Super. 2007). As
Appellant does not attempt to argue this challenge as applied to the specific
conduct that formed the basis for his conviction for corruption of minors, we
consider that the challenge is a facial one. On that basis, Appellant is not
entitled to any relief, since, as we stated, the issue already has been decided.
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Randall held that virtually identical language in the predecessor statute
to Section 63017 was not void for vagueness:
The comprehensive words of the statute, ‘whoever, being of the
age of twenty-one years and upwards, by any act corrupts or
tends to corrupt the morals of any child under the age of eighteen
years' certainly convey concrete impressions to the ordinary
person. The common sense of the community, as well as the
sense of decency, propriety and the morality which most people
entertain is sufficient to apply the statute to each particular case,
and to individuate what particular conduct is rendered criminal by
it.
It is obvious that the mandates of the statute are salutary
measures designed to protect children. ‘The ways and means by
which the venal mind may corrupt and debauch the youth of our
land, both male and female, are so multitudinous that to compel
a complete enumeration in any statute designed for protection of
the young before giving it validity would be to confess the inability
of modern society to cope with the problem of juvenile
delinquency.’ The general language of the statute, therefore, is
not a valid objection to it on constitutional grounds. Unless words
of such seeming generality as ‘moral’ and ‘immoral’ were valid in
statutes, government itself would become impossible. Manifestly,
there can be no objection to the use, in a statute, of words like
‘corrupt the morals' or ‘tends to corrupt the morals of any child,’
which include many things, all of which are intended by the
legislature to be covered; otherwise, there would be barred from
statutory use such customary verbiage as ‘fraudulent,’ ‘due,’
‘negligent,’ ‘arbitrary,’ ‘reasonable,’ etc.
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7 When we issued Randall, the corruption of minors statute was codified at
18 P.S. § 4532. Compare 18 P.S. § 4532 (“Whoever, being of the age of
twenty-one years and upwards, by any act corrupts or tends to corrupt the
morals of any child under the age of eighteen years . . . is guilty of a
misdemeanor”) with 18 Pa.C.S.A. § 6301(a)(1)(i) (“Except as provided in
subparagraph (ii), whoever, being of the age of 18 years and upwards, by any
act corrupts or tends to corrupt the morals of any minor less than 18 years of
age . . . commits a misdemeanor of the first degree”).
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It is not a valid criticism that such general moral standards may
vary slightly from generation to generation. Such variations are
inevitable and do not affect the application of the principle at a
particular period in time. The highest court in the land has
recognized that the ‘use of common experience as a glossary is
necessary to meet the practical demands of legislation’ and that
the ‘requirement of reasonable certainty does not preclude the use
of ordinary terms to express ideas which find adequate
interpretation in common usage and understanding.’
The constitutionality of similar statutes defining crimes in general
terms has been upheld by many courts where the general terms
used in the particular statute get precision from common
standards of morality prevalent in the community.
The validity of statutes making it a crime to contribute to the
delinquency of minors has been upheld in our own State and other
jurisdictions.
The term ‘moral turpitude’ has been held adequate to satisfy even
the strict rule applicable to criminal statutes. The term ‘good
moral character’ as used in the immigration and nationality laws
has frequently been applied by the courts. The measure applied
is the ‘common standard of morality’ prevalent in the community
or the ‘common conscience’ of the community.
We are convinced that the statute here involved was couched in
language sufficiently clear and definite to proscribe the conduct of
defendant Randall.
Id., 133 A.2d at 280–81 (citations omitted).
Randall continues to remain good law today because there is no
material difference between the operative language in the statute examined
in that case and the statute presently in force. See n.7, supra; see also
Commonwealth v. Lawrence, 2020 WL 996930, *3 (Pa. Super. filed Mar.
2, 2020) (unpublished memorandum) (relying in part on Randall in upholding
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constitutionality of the statute post-amendment).8 Thus, we follow Randall
and conclude that Appellant’s facial challenge to Section 6301(a)(1)(i) lacks
merit.
Alternatively, even if we consider Appellant’s challenge to be on an as-
applied basis, Appellant is not entitled to relief, because the statute is not
unconstitutionally vague. Appellant, a fifty-year old man who was over three
times the victim’s age (thirteen), initiated contact with her through Facebook
Messenger and asked her to wear pantyhose without underwear for one day
every week and then give the pantyhose to Appellant in return for money and
tobacco products. Appellant then met the victim at her residence and drove
her to a store to buy her tobacco products. Although Appellant claims that
the victim understood that his request for her pantyhose was a “joke,”
Appellant’s Brief at 13, an ordinary person would understand that a
relationship with obvious sexual overtones between a middle-aged man and a
thirteen-year-old girl constitutes conduct that an ordinary person would
understand to be offensive to community standards of decency, propriety and
morality. Appellant’s claim fails.
Appellant next challenges the sufficiency of the evidence underlying his
conviction for interference with custody of children under 18 Pa.C.S.A. § 2904.
Section 2904 provides in relevant part, “[a] person commits an offense if he
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8 See also Pa.R.A.P. 126(b) (non-precedential memorandum of Superior
Court issued after May 1, 2019, may be cited for its persuasive value).
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knowingly or recklessly takes or entices any child under the age of 18 years
from the custody of its parent, guardian or other lawful custodian, when he
has no privilege to do so.” 18 Pa.C.S.A. § 2904(a). This Court has interpreted
Section 2904(a) as follows:
A “taking” from custody “connotes a substantial interference with
parental control.” . . . Although no case has assigned a specific
definition to “taking,” it appears that an affirmative physical
removal of the child is necessary. See, e.g., Commonwealth v.
Stewart, 375 Pa. Super. 585, 544 A.2d 1384 [(Pa. Super. 1988)]
(paternal grandparents removed children from mother while
aware that she had lawful custody); . . . Commonwealth v.
Johnson, 263 Pa. Super. 512, 398 A.2d 694 ([Pa. Super.] 1979)
(defendant convicted of both kidnapping and interference with
custody of children for unlawfully taking child under fourteen years
old); Commonwealth v. Thrush, 23 Pa. D. & C. 3d 302
(Cumberland County 1980) (uncle removed child from school
without reason). Similarly, “enticing” has been defined as “[t]o
wrongfully solicit, persuade, procure, allure, attract, draw by
blandishment, coax or seduce.” Commonwealth v. Cowan, 9
Pa. D. & C. 3d 582, 585 (Warren County 1978) (quoting Black's
Law Dictionary 626 (4th ed.)). Finally, “it is the interruption of
lawful custody, and not merely the ‘taking’, [sic] that constitutes
the statutory offense.” Stewart, 375 Pa. Super. at 593, 544 A.2d
at 1388.
Commonwealth v. Rodgers, 599 A.2d 1329, 1331 (Pa. Super. 1991).
Appellant contends that his trip with the victim to purchase tobacco,
which took 22 minutes, was too brief to constitute a violation of Section 2904.
The plain language of the statute, however, imposes no time requirement.
See 18 Pa.C.S.A. § 2904(a). “[I]t is not for the courts to add, by
interpretation, to a statute, a requirement which the legislature did not see fit
to include.” Commonwealth v. Wright, 14 A.3d 798, 814 (Pa. 2011).
Appellant violated the elements spelled out in the statute. Appellant “took”
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the victim by removing her from her residence, traveling with her to a store
in his car, and purchasing tobacco products for her. 18 Pa.C.S.A. § 2904(a).
In the words of Rodgers, this episode constituted an “interruption” and a
“substantial interference” of the “lawful custody” of the victim’s mother. Id.,
599 A.2d at 1331. Thus, Appellant’s challenge to the sufficiency of the
evidence fails.
Both the trial court and Appellant refer us to decisions which they claim
make the length of time of a taking relevant under Section 2904. These
decisions do not persuade us that length of time is pertinent.
The trial court refers us to Commonwealth v. McClintock, 639 A.2d
1222 (Pa. Super. 1994), in which the defendant convinced an eight-year-old
child to get into his car on the pretext of showing him where a particular store
was located. The defendant was not related to the child, and the child was in
the car for one to five minutes. The defendant claimed the evidence was
insufficient to constitute a violation of Section 2904 because “[the child] was
in his car only momentarily” and because this statute only applies to estranged
parents. Id., 639 A.2d at 1224. Although we concluded that the evidence
was sufficient to sustain the defendant’s conviction, we did so on the ground
that “the wording of the statute . . . extend[s] to actors other than parents.”
Id. at 1225. We did not address the defendant’s contention that the incident
was too brief to give rise to criminal liability. Thus, McClintock does not
assist in our review of the present case.
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Appellant argues that a brief taking cannot support criminal liability
under Section 2904 based upon this Court’s statement in Stewart that “[w]e
are persuaded that it is not merely the act of taking or enticing that constitutes
the offense, but rather the continued maintenance of the child outside of the
custodian’s dominion.” Id., 544 A.2d at 1388. This statement, however,
cannot be understood without placing it within the context of the remainder
of Stewart’s discussion and the issue then presented for consideration.
Continuing, we further stated,
We are aided in this interpretation by the case
of Commonwealth v. Chubb, 3 Pa. D & C 3d 676
(Cumberland 1976), in which the court observed that section
2904 was derived from Model Penal Code 212.4, and quoted
the following language from the Joint State Government
Commission relating to this section:
Although this section is somewhat similar to
kidnapping, it is intended to protect parental custody
from unlawful interruption, even when the child is a
willing participant in the interference with custody.
The offender under this section, as distinguished from
the kidnapper, may be the parent or relative of the
child. Removal of the child for a brief period would not
be covered by this section. However, as intimated
above, this section would apply to a parent who
willfully defies a custody order by taking the child from
the parent who was awarded custody.
3 Pa.D & C 3d at 679.
Although Chubb was primarily concerned with one of the
statutory defenses to a section 2904 violation, the language
quoted above (and reprinted from Toll, Pennsylvania Crimes
Code Annotated (1974) at 347-348) would seem to indicate
that it is the interruption of lawful custody, and not merely the
"taking", that constitutes the statutory offense. Indeed, as
appellee correctly observes, if the statute was only intended to
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prohibit the physical taking, there would be no reason for the
Joint State Government Commission to have commented that
"removal of the child for a brief period is not covered by this
section.”
Stewart, 544 A.2d at 1388 (emphasis in original). The issue in Stewart was
whether someone who continued to keep a child from his rightful custodian
until after the statute of limitations has run is no longer guilty of interference
with custody. We held unequivocally not, since to do so would result in a
construction that was absurd, impossible of execution or unreasonable. We
construed Section 2904 to deal with a continuing offense and held that the
statute of limitations was tolled until the child in that case was returned to the
custody of his mother. The focus of Section 2904 is the unlawful interference
with custody, regardless of any length of time. Our statement that “it is not
merely the act of taking or enticing that constitutes the offense, but rather
the continued maintenance of the child outside of the custodian’s dominion”
was meant to elucidate why the statute of limitations did not run during the
time the child was unlawfully kept from their rightful custodian.
The comment by the Joint State Government Commission9 that
“[r]emoval of the child for a brief period would not be covered by this section”,
was meant only to compare the crimes of “Interference with Custody of
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9 The Joint State Government Commission Report, issued in 1967,
recommended the adoption of a Crimes Code for Pennsylvania comprised of a
series of statutes listed in the Report. The legislature eventually enacted a
Crimes Code at the end of 1972 which became effective in 1973.
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Children” with “Kidnapping”. A person commits the crime of kidnapping if he
“unlawfully removes another a substantial distance under the circumstances
from the place where he is found, or if he unlawfully confines another for a
substantial period in a place of isolation.” See 18 Pa.C.S.A. § 2901(a). By
comparison, the crime of interference with custody of children contains no
temporal element. As explained by the Joint State Government Commission
with respect to Section 2904,10
Although this section is somewhat similar to kidnapping,
it is intended to protect parental custody from
unlawful interruption, even when the child is a willing
participant in the interference with custody. The offender
under this section, as distinguished from the
kidnapper, may be the parent or relative of the child.
Removal of the child for a brief period would not be
covered by this section. However, as intimated above,
this section would apply to a parent who wilfully defies a
custody order by taking the child from the parent who
was awarded custody.
Joint State Government Commission, Proposed Crimes Code for Pennsylvania
(1967) at 104-106 (emphasis added). Appellant is not entitled to relief on
this claim.
We turn to Appellant’s next argument, a claim that the verdict for
corruption of minors and interference with custody of children was against the
weight of the evidence. Appellant asserts that “he was convicted for making
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10 In its report, the crime of “Kidnapping” is identified as Section 1101 and
the crime of “Interference with Custody of Children” is identified as Section
1104. We use the codified sections herein to avoid any confusion.
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a joke and spending less than a half hour with a child. If that is not shocking,
and thus against the weight of the evidence, nothing is.” Appellant’s Brief at
16. The trial court acted within its discretion in rejecting this argument.
A motion seeking a new trial based on the weight of the evidence is
addressed to the discretion of the trial court. A new trial should
not be granted because of a mere conflict in the testimony or
because the judge on the same facts would have arrived at a
different conclusion. Rather, the role of the trial judge is to
determine that notwithstanding all the facts, certain facts are so
clearly of greater weight that to ignore them or to give them equal
weight with all the facts is to deny justice. It has often been stated
that a new trial should be awarded when the jury’s verdict is so
contrary to the evidence as to shock one’s sense of justice and the
award of a new trial is imperative so that right may be given
another opportunity to prevail.
An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the
evidence. Because the trial judge has had the
opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination
that the verdict is against the weight of the evidence.
One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that
the verdict was or was not against the weight of the
evidence and that a new trial should be granted in the
interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (citations and
quotation marks omitted) (emphasis in the original).
The trial court reasoned:
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[Appellant] maintains that [he] was convicted for making a joke
and spending less than a half (1/2) hour with the victim. To the
contrary, [Appellant] was convicted for requesting that the victim
participate in wearing one (1) time per week pantyhose without
any underwear, that the victim provide the pantyhose to
[Appellant], and that [he] provide the victim money and tobacco
products. [Appellant] implemented this plan by traveling to the
victim’s residence, taking the victim from the residence to a
convenience store, and purchasing for the victim nicotine
products.
This Court is not shocked by the verdict entered by the Jury in this
matter.
Trial Court Opinion, 8/2/23, at 8-9. Based on this reasoning, we conclude that
the trial court acted within its discretion by rejecting Appellant’s challenge to
the weight of the evidence.
The Commonwealth’s cross-appeal questions whether the trial court
erred in granting Appellant’s post-sentence motion challenging the sufficiency
of the evidence underlying his conviction under 18 Pa.C.S.A. § 6318(a)(4) for
unlawful contact with a minor. We apply the same standard of review as
above when addressing Appellant’s sufficiency challenges. We agree with the
trial court that the evidence was insufficient to sustain Appellant’s conviction
under Section 6318(a).
The statute provides in relevant part:
(a) Offense defined. –A person commits an offense if the person
is intentionally in contact with a minor . . . for the purpose of
engaging in an activity prohibited under any of the following . . .
(1) Any of the offenses enumerated in Chapter 31 (relating to
sexual offenses).
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(2) Open lewdness as defined in section 5901 (relating to open
lewdness).
(3) Prostitution as defined in section 5902 (relating to prostitution
and related offenses).
(4) Obscene and other sexual materials and performances as
defined in section 5903 (relating to obscene and other sexual
materials and performances).
(5) Sexual abuse of children as defined in section 6312 (relating
to sexual abuse of children).
(6) Sexual exploitation of children as defined in section 6320
(relating to sexual exploitation of children).
* * * *
(c) Definitions. –As used in this section, the following words and
phrases shall have the meanings given to them in this subsection:
* * * *
“Contacts.” Direct or indirect contact or communication by any
means, method or device, including contact or communication in
person or through an agent or agency, through any print medium,
the mails, a common carrier or communication common carrier,
any electronic communication system and any
telecommunications, wire, computer or radio communications
device or system.
“Minor.” An individual under 18 years of age.
18 Pa.C.S.A. § 6318.
We have construed Section 6318 as follows:
In order to be convicted under section 6318, a defendant does not
have to be convicted of the underlying offense for which he
contacted the minor. Commonwealth v. Reed, 607 Pa. 629, 9
A.3d 1138 (2010). In other words, the offenses designated in
sections 6318(a)(1)–(6) are not predicate offenses for the offense
of unlawful contact with a minor. Id. Rather, a defendant is guilty
under section 6318 if he or she contacts the minor for the purpose
of engaging in the prohibited behaviors criminalized in Chapter 31
and 18 Pa.C.S.[A.] §§ 5901, 5902, 5903, 6312, and 6320 of the
Crimes Code.
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Commonwealth v. Weimer, 167 A.3d 78, 83 (Pa. Super. 2017) (emphasis
in the original).
In the present case, Appellant was charged under Section 6318(a)(4)
with contacting the victim for the purpose of violating 18 Pa.C.S.A. § 5903, a
statute entitled, “Obscene and other sexual materials and performances.”
Section 5903(a) provides:
No person, knowing the obscene character of the materials or
performances involved, shall:
(1) display or cause or permit the display of any explicit sexual
materials as defined in subsection (c) in or on any window,
showcase, newsstand, display rack, billboard, display board,
viewing screen, motion picture screen, marquee or similar place
in such manner that the display is visible from any public street,
highway, sidewalk, transportation facility or other public
thoroughfare, or in any business or commercial establishment
where minors, as a part of the general public or otherwise, are or
will probably be exposed to view all or any part of such materials;
(2) sell, lend, distribute, transmit, exhibit, give away or show any
obscene materials to any person 18 years of age or older or offer
to sell, lend, distribute, transmit, exhibit or give away or show, or
have in his possession with intent to sell, lend, distribute,
transmit, exhibit or give away or show any obscene materials to
any person 18 years of age or older, or knowingly advertise any
obscene materials in any manner;
(3)(i) design, copy, draw, photograph, print, utter, publish or in
any manner manufacture or prepare any obscene materials; or
(ii) design, copy, draw, photograph, print, utter, publish or in any
manner manufacture or prepare any obscene materials in which a
minor is depicted;
(4)(i) write, print, publish, utter or cause to be written, printed,
published or uttered any advertisement or notice of any kind
giving information, directly or indirectly, stating or purporting to
state where, how, from whom, or by what means any obscene
materials can be purchased, obtained or had; or
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(ii) write, print, publish, utter or cause to be written, printed,
published or uttered any advertisement or notice of any kind
giving information, directly or indirectly, stating or purporting to
state where, how, from whom or by what means any obscene
materials can be purchased, obtained or had in which a minor is
included;
(5)(i) produce, present or direct any obscene performance or
participate in a portion thereof that is obscene or that contributes
to its obscenity; or
(ii) produce, present or direct any obscene performance or
participate in a portion thereof that is obscene or that contributes
to its obscenity if a minor is included;
(6) hire, employ, use or permit any minor child to do or assist in
doing any act or thing mentioned in this subsection;
(7) knowingly take or deliver in any manner any obscene material
into a State correctional institution, county prison, regional prison
facility or any other type of correctional facility;
(8) possess any obscene material while such person is an inmate
of any State correctional institution, county prison, regional prison
facility or any other type of correctional facility; or
(9) knowingly permit any obscene material to enter any State
correctional institution, county prison, regional prison facility or
any other type of correctional facility if such person is a prison
guard or other employee of any correctional facility described in
this paragraph.
18 Pa.C.S.A. § 5903(a).
Additionally, Section 5903(b) defines the relevant terms as follows:
As used in this section, the following words and phrases shall have
the meanings given to them in this subsection:
“Community.” For the purpose of applying the “contemporary
community standards” in this section, community means the
State.
* * *
“Material.” Any literature, including any book, magazine,
pamphlet, newspaper, storypaper, bumper sticker, comic book or
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writing; any figure, visual representation, or image, including any
drawing, photograph, picture, videotape or motion picture.
“Minor.” An individual under 18 years of age.
* * *
“Obscene.” Any material or performance, if:
(1) the average person applying contemporary community
standards would find that the subject matter taken as a whole
appeals to the prurient interest;
(2) the subject matter depicts or describes in a patently offensive
way, sexual conduct of a type described in this section; and
(3) the subject matter, taken as a whole, lacks serious literary,
artistic, political, educational or scientific value.
“Performance.” Means any play, dance or other live exhibition
performed before an audience.
* * *
“Sexual conduct.” Patently offensive representations or
descriptions of ultimate sexual acts, normal or perverted, actual
or simulated, including sexual intercourse, anal or oral sodomy
and sexual bestiality; and patently offensive representations or
descriptions of masturbation, excretory functions,
sadomasochistic abuse and lewd exhibition of the genitals.
18 Pa.C.S.A. § 5903(b).
The record supports the trial court’s determination that Appellant did
not contact the victim for the purpose of violating any provision within Section
5903(a). More specifically, the trial court properly found that:
(1) Appellant did not contact the victim for the purpose of violating
Section 5903(a)(1) because he did not intend to “display . . . obscene
“materials . . . in or on any window, showcase, newsstand, display rack,
billboard, display board, viewing screen, motion picture screen, marquee or
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similar place.” Id. Section 5903 defines materials as “any literature, including
any book, magazine, pamphlet, newspaper, storypaper, bumper sticker,
comic book or writing; any figure, visual representation, or image, including
any drawing, photograph, picture, videotape or motion picture.” 18 Pa.C.S.A.
§ 5903(b). The only item that Appellant requested from the victim,
pantyhose, is not a material under this definition;
(2) Appellant did not contact the victim for the purpose of violating
Section 5903(a)(2) because he did not intend to “sell, lend, distribute,
transmit, exhibit, give away or show,” or “offer to sell, lend, distribute,
transmit, exhibit, give away, or show . . . obscene materials to a person
eighteen years of age or older.” Id. (emphasis added). Instead, Appellant
solicited an item (pantyhose) from a person under eighteen years of age that
did not constitute a material under Section 5903;
(3) Appellant did not contact the victim for the purpose of violating
Section 5903(a)(3) because he did not intend to “design, copy, draw,
photograph, print, utter, publish or in any manner manufacture or prepare
any obscene materials.” Id. The only item Appellant solicited from the victim,
pantyhose, is not a material under Section 5903;
(4) Appellant did not contact the victim for the purpose of violating
Section 5903(a)(4), which prohibits advertisements concerning procurement
of obscene materials. There was no evidence that Appellant had any intention
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of publishing advertisements, and the only item Appellant solicited from the
victim, pantyhose, is not a material under Section 5903;
(5) Appellant did not contact the victim for the purpose of violating
Section 5903(a)(5), which prohibits the “produc[tion], present[ation] or
direct[ion] [of] any obscene performance.” Id. Section 5903(b) defines
“performance” as “any play, dance or other live exhibition performed before
an audience.” Id. The evidence does not indicate that Appellant intended the
victim to perform before an audience;
(6) Appellant did not contact the victim for the purpose of violating
Sections 5903(a)(7), (a)(8), or (a)(9), which prohibit delivery of obscene
materials to correctional facilities and/or incarcerated individuals. Appellant
was not incarcerated at the time of his acts and did not facilitate delivery of
anything to any correctional facility;
(7) Appellant did not contact the victim for the purpose of violating
Sections 5903(a)(6), which prohibits “hir[ing], employ[ing], us[ing] or
permit[ting] any minor child to do or assist in doing any act or thing mentioned
in [the foregoing subsections],” id., since the discussion above demonstrates
that Appellant did not intend to violate any subsection of Section 5903(a).
See Trial Court Opinion, 8/2/23, at 5-8.
The Commonwealth insists that the evidence was sufficient on the
ground that Appellant’s conduct in soliciting the victim’s pantyhose satisfied
the definition of “obscene” under Section 5903(b). Even assuming that
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Appellant’s conduct satisfied the definition of “obscene,” the trial court’s
analysis above demonstrates that Appellant did not violate other necessary
elements within each subsection of Section 5903(a). As a result, his
conviction for unlawful contact with minors cannot stand.
The Commonwealth also contends that the trial court erred in granting
Appellant’s post-sentence motion for judgment of acquittal because it
previously denied Appellant’s petition for habeas corpus and his motion for
acquittal at the close of evidence. We disagree.
Pennsylvania Rule of Criminal Procedure 606 provides:
(A) A defendant may challenge the sufficiency of the evidence to
sustain a conviction of one or more of the offenses charged in one
or more of the following ways:
(1) a motion for judgment of acquittal at the close of the
Commonwealth's case-in-chief;
(2) a motion for judgment of acquittal at the close of all the
evidence;
(3) a motion for judgment of acquittal filed within 10 days after
the jury has been discharged without agreeing upon a verdict;
(4) a motion for judgment of acquittal made orally immediately
after verdict;
(5) a motion for judgment of acquittal made orally before
sentencing pursuant to Rule 704(B);
(6) a motion for judgment of acquittal made after sentence
is imposed pursuant to Rule 720(B); or
(7) a challenge to the sufficiency of the evidence made on appeal.
Pa.R.Crim.P. 606(a) (emphases added). Consistent with the use of “or,” the
Comment to Rule 606 states:
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A defendant may challenge the sufficiency of the evidence in any
one or more of the ways listed in paragraph (A) of this rule. . . .
If the defendant does move [for judgment of acquittal] before
verdict and the motion is denied, the defendant may renew the
motion before the trial court pursuant to paragraphs (A)(3)
through (A)(6).
Comment, Pa.R.Crim.P. 606. Thus, contrary to the Commonwealth’s
argument, the fact that Appellant moved unsuccessfully for judgment of
acquittal prior to verdict did not preclude him from again challenging the
sufficiency of the evidence in post-sentence motions or preclude the trial court
from reversing its prior orders denying dismissal or acquittal on the charge of
unlawful contact with a minor.
Finally, we address Appellant’s contention that the trial court erred by
designating him as an SVP under the Sexual Offenders Registration and
Notification Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.10-9799.42. In the first
part of his argument, Appellant asserts that SORNA is unconstitutional under
our Supreme Court’s opinion in Commonwealth v. Torsilieri, 232 A.3d 567
(Pa. 2020). This claim fails because after further proceedings in Torsilieri,
our Supreme Court held that SORNA is constitutional. See Commonwealth
v. Torsilieri, 316 A.3d 77 (Pa. 2024).
Alternatively, Appellant contends that even if SORNA is constitutional,
the trial court erred by concluding that the Commonwealth furnished clear and
convincing evidence that Appellant is an SVP. Once again, we disagree.
When this Court reviews a challenge to the sufficiency of the evidence
underlying an SVP determination, our standard of review is de novo and our
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scope of review is plenary. Commonwealth v. Meals, 912 A.2d 213, 218
(Pa. 2006). In conducting sufficiency review, we must consider the evidence
in the light most favorable to the Commonwealth, who prevailed upon the
issue at trial. Id. In most cases, we will determine whether the record
supports the findings of fact made by the trial court and then review the legal
conclusions made from them. Commonwealth v. Krouse, 799 A.2d 835,
838 (Pa. Super. 2002). However, in cases, as here, where the trial court has
stated its legal conclusions but has not provided specific findings of fact, we
will review the entire record of the post-conviction SVP hearing as our scope
of review is plenary. Id.
Section 9799.12 of SORNA defines the term “sexually violent predator”
as
[a]n individual who committed a sexually violent offense on or
after December 20, 2012, for which the individual was convicted,
[ ] who is determined to be a [SVP] under section 9799.24
(relating to assessments) due to a mental abnormality or
personality disorder that makes the individual likely to engage in
predatory sexually violent offenses.
42 Pa.C.S.A. § 9799.12 (effective June 12, 2018 to May 7, 2024); see also
Commonwealth v. Butler, 226 A.3d 972, 992 (Pa. 2020) (a SVP, in addition
to having been convicted of a sexually violent offense, is a person “who [has]
been individually determined to suffer from a mental abnormality or
personality disorder such that [he is] highly likely to continue to commit
sexually violent offenses”). A “sexually violent offense” is “[a]n offense
specified in section 9799.14 (relating to sexual offenses and tier system) as a
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Tier I, Tier II[,] or Tier III sexual offense committed on or after December 20,
2012, for which the individual was convicted.” 42 Pa.C.S.A. § 9799.12
(effective June 12, 2018 to May 7, 2024). SORNA defines “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.
Under Section 9799.24 of SORNA, after a defendant is convicted of a
sexually violent offense, but before sentencing, the trial court shall order the
Sexual Offenders Assessment Board (“SOAB”) to conduct an “assessment of
the individual to determine if the individual should be classified as a [SVP.]”
42 Pa.C.S.A. § 9799.24(a) and (b). In performing its assessment, the SOAB
examines, inter alia, 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.
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(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(b)(1-4).
The trial court’s inquiry at an SVP hearing
differs from the assessment conducted by SOAB. “Whereas the
SOAB member must consider the fifteen factors listed in section
9799.24(b), the trial court must determine whether the
Commonwealth has proven by clear and convincing evidence that
the defendant is an individual who has “a mental abnormality or
personality disorder that makes the individual likely to engage in
predatory sexually violent offenses.” 42 Pa.C.S.A. § 9799.12
(providing the definition of a “sexually violent predator”).
Commonwealth v. Moore, 307 A.3d 95, 101 (Pa. Super. 2023). There is no
requirement that all the statutory factors or any number of them be present
or absent 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.”
Commonwealth v. Morehart, 2023 WL 7409256, *2 (Pa. Super., filed Nov.
8, 2023) (citing Commonwealth v. Brooks, 7 A.3d 852, 863 (Pa. Super.
2010)). Nor does the Commonwealth have to show that any certain factor is
present or absent to support an SVP determination. Brooks, 7 A.3d at 863.
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“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.” Id. (citation omitted). Ultimately, it is the trial court’s task
to determine whether the Commonwealth has demonstrated by clear and
convincing evidence that a defendant is to be classified as an SVP due to a
mental abnormality or personality disorder that makes the individual likely to
engage in predatory sexually violent offenses. 42 Pa.C.S.A. §§ 9799.12 and
9799.24.
This Court’s task in an appeal from the determination of SVP status “is
one of review, and not of weighing and assessing evidence in the first
instance.” Meals, 912 A.2d at 223.
In this case, the Commonwealth presented an expert psychologist in the
field of SVP assessments, William G. Allenbaugh, who opined that Appellant
met the criteria for SVP status based on his review of the factors in Section
9799.24(b)(1-4). See N.T., 5/16/23, at 8-17. Allenbaugh testified that he
was familiar with and reviewed all the factors necessary to qualify someone
as an SVP. Id. at 9. He testified that there was only one victim in this case.
Id. However, in the past, there were two prior victims under the age of
consent, indicating to him a pattern of behavior against nonconsenting
females. Id. There was no evidence to indicate Appellant exceeded the
means necessary to achieve the offense. Id. at 9-10. Allenbaugh examined
the nature of the sexual contact, which in this case was Appellant’s solicitation
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of a victim to satisfy his fetish. Id. at 10. Appellant and the victim were
acquaintances, having met on Facebook, but apparently had known each other
for some time. Id. The victim was 13 years old; Appellant was a 50-year-old
man. Id. There was no unusual cruelty or sadistic behavior in this case. Id.
There was no indication to indicate the victim suffered from any condition that
would have increased her vulnerability. Id. at 11.
Appellant has a prior arrest record dating back to age 23 that included
failures to register for Megan’s Law, PFA violations, and two prior sex offenses,
one in 1991 and one in 2006. Id. Allenbaugh found this indicated an inability
to learn from past mistakes and the possible presence of paraphilia in light of
three sexual offenses against adolescent or younger females. Id. Appellant
completed sex offender programming within the DOC, but records were
unclear whether he completed outpatient treatment while on parole. Id.
However, reoffending after completing or engaging in sex offender treatment
is a factor that suggested the strength of paraphilia. Id. at 12. While it did
not appear that illegal drugs were involved, Appellant used vape pods to
manipulate or control the victim or to solicit her to send him pictures of her in
underwear. Id. There was no history of depression, but that is considered a
concurrent disorder not relevant to sexual offending. Id.
The offense in this case reflected a continuation of sexually offensive
behavior against children dating back to 1993. Id. at 12-13. Appellant’s
present and past sexually offensive behavior demonstrated that Appellant has
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a deviant sexual interest in female children unable to give legal consent for
sexual behavior based on their age. Id. at 13. It was Allenbaugh’s
professional opinion that Appellant met the criteria for other specified
paraphilic disorder, nonconsent, which is considered a mental abnormality
under the Act. Id. It also appeared to Allenbaugh that Appellant was in the
initial stages of grooming the victim to normalize sexual behavior with him.
Id. The use of nicotine pods and money with the victim increased his leverage
with her and enabled him to gain control of the relationship. Id.
Allenbaugh looked at other mental factors that are reasonably supported
in the sexual offender assessment field related to the risk to reoffend.
Research demonstrates that multiple factors attributable to Appellant —
having a deviant sexual interest in children, having two or more prior victims,
having two or more prior arrests, and having sexually reoffended after
engaging in and completing sex offender specific treatment — were all factors
reasonably related to the risk of reoffense. Id. at 13-14.
Allenbaugh looked at mental abnormality or personality disorder criteria
that makes sexual offenses likely and that exhibits predatory behavior. In his
professional opinion, Appellant suffered from a paraphilic disorder,
nonconsent, which is considered a congenital or acquired condition that is an
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impetus to sexual offending. Id. at 14. Under the DSM-5,11 paraphilias may
wax and wane, but they are considered lifetime disorders for which there is
no cure. Id. Allenbaugh found that this condition overrode Appellant’s
emotional and volatile control. Having been convicted twice before, Appellant
knew the potential consequences to himself and his victim, but in spite of that,
he engaged in sexual behavior with the 13-year-old victim to satisfy his
sexually deviant interest. Id. at 14-15. This indicated the strength of the
paraphilia involving teenagers, specifically teenage girls, and it was something
that past arrests and treatment have not been able to cure.12 Id. at 15.
Appellant utilized a deviant sexual pathway to offend and therefore suffers
from a mental abnormality as defined under the Act. Id. Allenbaugh had no
doubt that the relationship Appellant developed with the victim was in whole
or in part for the purpose of sexual victimization and exploitation, and that he
was more interested in his own sexual desires than the welfare of the child.
Id. at 15-16. It was his professional opinion that Appellant met the criteria
of predatory as defined under the Act, id., and met the criteria to be classified
as a sexually violent predator. Id. at 16.
____________________________________________
11 The Diagnostic and Statistical Manual of Mental Illnesses is
the American
Psychiatric Association’s professional reference book on mental health and
brain-related conditions. The number “5” attached to the name of the DSM
refers to the fifth — and most recent — edition of this book.
12 The Notes of Testimony use the term “occur” as opposed to “cure”, which
we assume is a typographical error given the context of this part of the
witness’s testimony.
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At the conclusion of the SVP hearing, the court announced that it found
by clear and convincing evidence that Appellant is a sexually violent predator.
Id. at 25. The court then proceeded to enter this determination in an order
dictated into the record. Id. Under our plenary standard of review, we
conclude that the evidence, viewed in a light most favorable to the
Commonwealth, was sufficient for the court to conclude, based upon clear and
convincing evidence, that Appellant was an SVP.
In his brief, Appellant argued that the evidence was insufficient to prove
that he was an SVP because the evidence rested upon one picture that was
never generated, information was reviewed from a prosecutorial viewpoint,
the offense did not involve multiple victims, necessary means were not
exceeded, contact was not in-person, the parties were not strangers, no
cruelty was involved, the victim was not mentally infirm, and no illegal drugs
were at play. What Appellant fails to appreciate is that he is attempting to
argue the weight of the evidence in this sufficiency challenge. He also fails to
acknowledge that the criteria under Section 9799.24 are non-exclusive factors
that do not operate as a checklist where each factor weighs, in some absolute
fashion, either for or against an SVP classification. Meals, Moorehart,
Brooks, supra. Appellant offered no evidence or testimony during the SVP
hearing. Instead, counsel relied solely upon his cross-examination and
concluding argument. Appellant cannot succeed with a sufficiency challenge
by simply asserting evidentiary points that militate against an SVP
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determination without demonstrating why other evidence relied upon by the
Commonwealth and court do not support this determination. Once the court
makes its SVP determination, the relevance of cross-examination for purposes
of appellate sufficiency review is a very different matter. Meals. The
appellate task requires construing the evidence in the light most favorable to
the party that prevailed before the factfinder. Id. Finding that the evidence
clearly and convincingly was sufficient to classify Appellant as an SVP, we
conclude Appellant is not entitled to relief.
Judgment of sentence affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 10/01/2024
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