Com. v. Yannuzzi, J.

J-S21020-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JOSHUA YANNUZZI :

:

Appellant : No. 167 EDA 2021

Appeal from the Judgment of Sentence Entered December 14, 2020

In the Court of Common Pleas of Chester County Criminal Division at

No(s): CP-15-CR-0004273-2018

BEFORE: BOWES, J., OLSON, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.: FILED DECEMBER 10, 2021

Appellant, Joshua Yannuzzi, appeals from the December 14, 2020

judgment of sentence imposing three to twenty-three months’ incarceration

to be followed by ten years’ consecutive probation after Appellant pleaded

guilty to one count each of obscene and other sexual materials and

performances (a first-degree misdemeanor) and invasion of privacy (a

second-degree misdemeanor), as well as three counts of interception,

disclosure or use of wire, electronic or oral communications (a third-degree

felony).1 Prior to his sentencing, the trial court designated Appellant a

sexually violent predator (“SVP”) pursuant to Pennsylvania’s Sexual Offender

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 5903(a)(1), 7507.1(a)(1), and 5703(1), respectively.

J-S21020-21

Registration and Notification Act (“SORNA”), 42 Pa.C.S.A. §§ 9799-10 to

9799.41. We affirm.

The trial court summarized the procedural history as follows:

On August 28, 2019[, Appellant] tendered an open guilty plea to

[the aforementioned crimes. Appellant’s] conviction of invasion

of privacy [] is a Tier I sexual offense under SORNA, with a

prescribed registration period of fifteen [] years. See 42 Pa.C.S.A.

§§ 9799.14(b)(10)[; see also] 9799.15(a)(1).

The written guilty plea colloquy summarized the facts as follows:

"On [October] 10, 2018[, Appellant] surreptitiously recorded

victims in a private bathroom [without] their knowledge. [These

video recordings] occurred in West Chester[,] Chester County[,

Pennsylvania]." The verbal guilty plea colloquy presented the

factual predicate [in] greater detail [as follows:]

[] On October 10, 2018[,] victim number 1 reported that

she found a [cellular telephone] underneath the sink [that

was] recording video footage in a gender[-]neutral

bathroom [in a building] on the campus of [the local

university].

This is a single[-]use[r] bathroom with no stalls. Victim

number 1 noted that there was no one [in] the bathroom

besides her when she was using it. The [cellular telephone]

was pointed at the toilet and had tape covering the flash

part of the [telephone]. Victim number 1 noted that upon

retrieval[,] she double clicked on the [telephone’s] home

button [] and noticed that the [telephone] appeared to be

recording video footage via a mobile application.

Forensic examination of the cellular [telephone] resulted in

the following notable discoveries: More than ten stored user

accounts and/or email addresses reflected in the device

were owned and used by [Appellant,] including a

[university-issued] email address associated with

[Appellant]. Numerous still images and video files depicting

[Appellant] handling the device were also recovered.

Numerous user[-]generated video recordings depict[ing] in

excess of 90 individuals using at least ten unique bathrooms

were recovered. Included in this total [were] at least 45

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videos depicting individuals using gender[-]neutral

bathrooms [at the local university], including the video

depicting [victim number 1] using the bathroom on the date

of the discovery.

The beginning of that particular video recording shows

[Appellant] placing the recovered [] cellular telephone

underneath the sink in the gender[-]neutral bathroom and

position[ing] it in a manner where he could surreptitiously

record any activity or use of the toilet area. [At] the

conclusion of the video[,] the [reporting] victim was

observed finding the [cellular telephone] under the sink.

The video [] shows victim number 1 using the bathroom in

a state of undress.

The forensic search also revealed a mobile [application]

installed [on the cellular telephone] called the spy camera.

The application was used in excess of 100 times between

September 17, 2018[,] and October 10, 2018. The

application is designed to secretly capture [photographs]

and video by hiding the camera interface while in use.

[Appellant] was arrested and confessed to his crimes.

During his confession[, Appellant] admitted to the following:

[H]e placed the [cellular telephone] under the

sink using [reinforced adhesive tape]. He

secretly recorded [victims] in the

gender[-]neutral bathroom on [the university]

campus 30 to 50 times. [H]e recorded

individuals in other bathrooms. [H]e recorded

those individuals in order to capture them using

the bathroom without their knowledge or

consent.

[H]e recorded these individuals for the purposes

of sexual gratification. [H]e recorded these

individuals in order to masturbate to the videos

at a later time. He never received consent from

any of the women to visually or audibly record

them. [H]e uploaded one video to [a website].

The video captured a female using the bathroom

without her knowledge or consent. He provided

his [username] and password [to access the

website].

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The video was uploaded on July 11, 2017. It

was viewed 1,097 times as of the date of the

interview. He [] uploaded the video in order for

others to access and view the video.

He [] identified victims that he secretly video

recorded from the following locations: [a

theatre] in Berwyn, Pennsylvania; a home in

Philadelphia[, Pennsylvania]; a beach house in

[Rehoboth] Beach, Delaware; a residence in

West Chester, Pennsylvania; [a theatre] at [the

university; and] a residence in Reading,

Pennsylvania.

In total[,] the Commonwealth identified 25 victims who

[Appellant] secretly recorded. In all [] the recordings[,] the

victims were in some stage of nudity [or] undress and using

the bathroom. None of them had given consent or

allowance for those recordings.

At the time of the plea, [Appellant] was a twenty-five [] year-old

male with an associate's degree in communications from [a

community college].

The [trial] court accepted [Appellant’s] plea. [Appellant] signed a

plea colloquy acknowledgement of his sex offender registration

and notification requirements, including the mandate that he

undergo a SVP assessment and the ramifications of a designation

as such. On February 12, 2020, the [trial] court ordered a

pre-sentence investigative report and a Sexual Offenders

Assessment Board evaluation.

The pre-sentence investigative report was completed on April 1,

2020. The Sexual Offenders Assessment Board evaluation and

report, conducted and prepared by Dr. Bruce E. Mapes, Ph.D.

[(“Dr. Mapes”)2], was completed on [] May 8, 2020. [Appellant]

did not participate in that assessment. Instead, [Appellant]

____________________________________________

2 As a member of the Sexual Offenders Assessment Board, Dr. Mapes is

qualified as an expert in the field of the behavior and treatment of sexual

offenders. 42 Pa.C.S.A. § 9799.35 (stating, “[t]he [Sexual Offenders

Assessment Board] shall be composed of psychiatrists, psychologists[,] and

criminal justice experts, each of whom is an expert in the field of the behavior

and treatment of sexual offenders”).

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retained his own expert, Dr. Frank M. Dattilio, Ph.D., ABPP [(“Dr.

Dattilio”)], to perform a psychological evaluation and sexual risk

assessment on [Appellant’s] behalf, in which [Appellant] did

participate. Dr. Mapes determined that [Appellant] met the

criteria to be designated [a SVP]. Dr. Dattilio, who completed his

expert report on November 19, 2020, did not [find Appellant met

the criteria to be designated a SVP].

On December 14, 2020, [the trial court] convened for

[Appellant’s] SVP hearing and sentencing. With regard to the

question of [Appellant’s] status as [a] SVP, the parties agreed to

submit their respective expert reports in lieu of testimony. After

reviewing both reports and hearing the arguments of counsel, [the

trial court] determined that [Appellant] met the criteria for

designation as [a] SVP and issued an order to that effect, directing

him to comply with SORNA's lifetime registration and notification

provisions. [Appellant] also signed a sentencing colloquy

acknowledgment of his obligations under SORNA.

After determining that [Appellant] met the criteria to be

designated as a [SVP, the trial court] turned to [sentencing

Appellant] for the offenses to which he [pleaded guilty]. On the

conviction for invasion of privacy[, the trial court] sentenced

[Appellant] to a term of three [] to twenty-three [] months'

imprisonment in Chester County Prison. On the conviction for

obscene and other sexual materials and performances[, the trial

court] sentenced [Appellant] to a term of two years' probation, to

run consecutive[ly] to the sentence imposed [for the invasion of

privacy conviction]. On [the first count] for interception,

disclosure or use of wire, electronic or oral communications[, the

trial court] sentenced [Appellant] to [a] term of five [] years'

probation, to run consecutive[ly] to the sentence imposed [for the

invasion of privacy conviction]. On [the second count for]

interception, disclosure or use of wire, electronic or oral

communications[, the trial court] sentenced [Appellant] to a term

of three [] years[’] probation to run consecutively to the sentence

imposed on [the first count of interception, disclosure or use of

wire, electronic or oral communications]. Finally, on [the third

count for interception, disclosure or use of wire, electronic or oral

communications, the trial court] sentenced [Appellant] to a term

of one [] year of probation, to run concurrent[ly] to the sentence

imposed [for the invasion of privacy conviction]. Thus,

[Appellant’s] aggregate sentence is three [] to twenty-three

months[’ incarceration] followed by ten [] years of consecutive

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probation. [The trial court] also made [Appellant] re-entry plan

eligible at the warden's discretion.

Trial Court Opinion, 3/22/21, at 1-6 (extraneous capitalization, record

citations, and original brackets omitted).

Appellant raises the following issue for our review: “Did the trial court

err when it designated [Appellant] as a [SVP]?” Appellant’s Brief at 4.

Appellant’s objection to the trial court’s SVP determination raises a

challenge to the sufficiency of the evidence; thus, our standard of review is

de novo and our scope of review is plenary.3 Commonwealth v. Meals, 912

A.2d 213, 218 (Pa. 2006).

The determination of a defendant's SVP status may only be made

following an assessment by the [Sexual Offenders Assessment]

Board and [a] hearing before the trial court. In order to affirm [a]

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. As with any

sufficiency of the evidence claim, we view all evidence and

reasonable inferences therefrom in the light most favorable to the

Commonwealth[, as the prevailing party on this issue]. We will

reverse a trial court's determination of SVP status only if the

Commonwealth has not presented clear and convincing evidence

that each element of the statute has been satisfied.

____________________________________________

3 Although Appellant did not specify the element or elements of the statute he

was challenging in his sufficiency claim, a review of Appellant’s brief

demonstrates that he is challenging the sufficiency of the evidence to prove

that he was in a “relationship” with the victims in order to establish that he is

likely to engage in future predatory sexually violent offences. Appellant’s Brief

at 7-9. As discussed infra, proof that a defendant was in a “relationship” with

the victim of the underlying sexually violent offense is not a necessary element

to designate the defendant a SVP.

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Commonwealth v. Fuentes, 991 A.2d 935, 941-942 (Pa. Super. 2010) (en

banc) (citation omitted), appeal denied, 12 A.3d 370 (Pa. 2010). The clear

and convincing standard governing a determination of SVP status “requires

evidence that is so clear, direct, weighty, and convincing as to enable the

trier[-]of[-]fact to come to a clear conviction, without hesitancy, of the truth

of the precise facts in issue.” Meals, 912 A.2d at 219 (citation, original

quotation marks, and original brackets omitted).

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 sexually violent predator 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; see also Commonwealth v. Butler, 226 A.3d 972,

992 (Pa. 2020) (stating, 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 they are

highly likely to continue to commit sexually violent offenses”). A “sexually

violent offense” is defined by SORNA as “[a]n offense specified in section

9799.14 (relating to sexual offenses and tier system) as a Tier I, Tier II[,] or

Tier III sexual offense committed on or after December 20, 2012, for which

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the individual was convicted.”4 42 Pa.C.S.A. § 9799.12. “Predatory” is

defined by SORNA 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 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 Sexual

Offenders Assessment Board 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.[5]

(v) Age of the victim.

____________________________________________

4 Appellant’s conviction for invasion of privacy, 18 Pa.C.S.A § 7501.1, is a

designated Tier I sexually violent offense under Section 9799.14. See 42

Pa.C.S.A. § 9799.14(b)(10).

5 Although the Sexual Offenders Assessment Board must consider all the

prescribed factors enumerated in Section 9799.24, including, inter alia, a

defendant’s relationship with the victim, there is no statutory requirement that

all factors must be present in order to designate the defendant as a SVP.

Commonwealth v. Feucht, 955 A.2d 377, 381 (Pa. Super. 2008).

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(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(b)(1-4).

Here, Appellant concedes that he suffered from a mental abnormality,

specifically, voyeuristic disorder. Appellant’s Brief at 7, see also, N.T.,

12/14/20, at 17. Appellant further stated that he “set up a camera in a public

bathroom that captured images of any and all who entered its frame.”

Appellant’s Brief at 8. Appellant contends, however, that, in order to prove

his disorder will likely cause him to engage in future predatory sexually violent

offenses, the Commonwealth was required to prove by clear and convincing

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evidence that he had a “relationship” with the victims of his instant

convictions. Id. Within the context of the term “predatory” under SORNA,

Appellant contends,

Under rules of statutory construction, the plain meaning of

"directing an act toward" and "having a relationship with"'

someone is not present in the situation at bar. Specifically,

[Appellant] set up a camera in a public bathroom that captured

images of any and all who entered its frame. [Appellant] did not

direct any act toward any specific stranger or target[,] and he

definitely didn't establish relationships with anyone who was

recorded in the bathroom.

Id. at 7-8. Appellant asserts that “if the act of victimizing someone in and of

itself[, without proving that a defendant was in a relationship with the victim,]

qualifies as predatory, then everyone who commits a sexually violent offense

should be [a] SVP and the word ‘predatory’ would be redundant[.]” Id. at 8.

In so arguing, Appellant raises, in part, an issue involving the

interpretation of a statute, specifically the definition of “predatory” under

Section 9799.12 of SORNA, for which our scope of review is plenary, and our

standard of review is de novo. Commonwealth v. Satterfield, 255 A.3d

438, 442 (Pa. 2021). When interpreting a statute, an appellate court strives

to ascertain and effectuate the intent of the legislature in enacting the statute.

Commonwealth v. Smith, 234 A.3d 576, 585 (Pa. 2020); see also 1

Pa.C.S.A. § 1921(a) (stating, “The object of all interpretation and construction

of statutes is to ascertain and effectuate the intention of the General

Assembly. Every statute shall be construed, if possible, to give effect to all

its provisions.”).

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To reiterate, Section 9799.12 of 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.” 42 Pa.C.S.A. § 9799.12; see also

Feucht, 955 A.2d at 381 (stating, “[a] sexually violent offense is a predatory

one if it is 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” (citation and original quotation

marks omitted)), appeal denied, 963 A.2d 467 (Pa. 2008).

In order for a person to be designated [a] SVP, the crime

committed in the case under consideration need not have been

predatory, although it must have been a sexually violent

[offense]. Rather, what is required is that the person's mental

abnormality[6] makes the person likely to engage in predatory

behavior, whether or not the offense at issue was predatory.

Naturally, the facts of the instant offense are material to the SVP

assessment. However, there simply is no requirement that the

charge under consideration be a predatory offense.

Feucht, 955 A.2d at 381 (citations omitted).

A plain-reading of the definition of “predatory” demonstrates that for a

sexually violent offense to be predatory, the act (or offense) must be directed

at a stranger or at a person with whom a defendant develops a new

____________________________________________

6 A mental abnormality is “[a] congenital or acquired condition of a person

that affects the emotional or volitional capacity of the person in a manner that

predisposes that person to the commission of criminal sexual acts to a degree

that makes the person a menace to the health and safety of other persons.”

42 Pa.C.S.A. § 9799.12.

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relationship, or already has an established relationship with, and fosters or

promotes that relationship for purpose of victimizing the person. The use of

the word “or” denotes that the act can be directed at a stranger or a person

with whom the defendant has a relationship. Therefore, the Commonwealth

is required to demonstrate by clear and convincing evidence that a defendant,

due to a mental abnormality, is likely to commit future sexually violent

offenses directed at a stranger or a person with whom the defendant has a

relationship. The Commonwealth is not required to demonstrate that the

underlying sexually violent offense was predatory by demonstrating that a

defendant was in a relationship with the victim, as suggested by Appellant.7

See Feucht, 955 A.2d at 381

In determining there was sufficient evidence to demonstrate that

Appellant’s mental abnormality was likely to cause him to commit future

predatory sexually violent offices, the trial court stated,

the Commonwealth has met its burden of proving by clear and

convincing evidence that [Appellant] meets the criteria to be

designated [a] SVP. [Appellant] is a life-long voyeur. He has

____________________________________________

7 Appellant’s brief fails to cite to any case law that is contrary to this Court’s

holding in Feucht, supra, or that supports his contention that the

Commonwealth must prove that the sexually violent offense (invasion of

privacy in the case sub judice) was predatory in order to find that he is likely

to commit future predatory sexually violent offenses as a result of a mental

abnormality. See Pa.R.A.P. 2119(a) (stating that the argument section of an

appellate brief shall include discussion of each issue with citation of

authorities). We are unpersuaded by Appellant’s argument and have found

no case law or statute in support of his argument. See Feucht, 955 A.2d at

381 (stating, “there is simply no requirement that the charge under

consideration be a predatory offense”).

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been photographing women without their knowledge and consent

for his own sexual gratification since he was thirteen years old.

Initially, he took video footage of women's body parts while they

were clothed. Over the years[,] it escalated into surreptitious

video-recording of women in various states of undress using public

or private bathrooms without stalls, where women could not avoid

the prying scope of [Appellant’s recording] device. He even

uploaded a picture of one of his victims onto the Internet where

the footage was viewed 1,097 times. [Appellant] expanded his

criminal voyeurism into two [] other states[,] as well as other

counties in Pennsylvania. His victims[, in the instant case,]

number more than ninety [] persons, some of them friends. Even

after being apprehended, [Appellant] socialized with his unwitting

victims as if nothing had happened. [Appellant] has multiple

sexually deviant paraphilias, all related to the types of activities

he [records] in the bathrooms. He knew it was wrong, knew he

was invading others' privacy, and knew he was taking great risks

himself, but blamed his behavior on his "addiction" to

pornography and rationalized it to himself as lesser than it was

because it did not involve physical contact. [Appellant’s]

diagnosis of voyeuristic disorder is a lifelong condition and

qualifies as a mental abnormality [or] personality disorder for SVP

purposes. The length of time he has had this condition, its

pervasiveness, the presence of his other sexually deviant

paraphilias, his sexual exploitation of more than ninety [] people,

strangers as well as friends, his admission that his disorder

overrides his ability or willingness to control his behavior, his

efforts to conceal his activities, his persistence even though he

knew his behavior was legally wrong, injurious to others, and risky

for himself, and his plea to a predicate sexually violent offense all

demonstrate clearly and convincingly that [Appellant] is [a] SVP,

i.e., a person convicted of a sexually violent offense who has a

mental abnormality or personality disorder that makes him likely

to engage in predatory sexually violent offenses. 42 Pa.C.S.A.

§ 9799.12.

Trial Court Opinion, 3/22/21, at 37-39 (extraneous capitalization omitted).

A review of the record demonstrates that both the Commonwealth and

Appellant concede that he was convicted of a sexually violent offense, i.e.,

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invasion of privacy, and that he suffers from voyeuristic disorder.8 Although

Appellant did not participate in Dr. Mapes’s assessment to determine if

Appellant was a SVP, Dr. Mapes noted that Appellant “reported being sexually

aroused” by several types of paraphilia that were “considered deviant sexual

interests.”9 Commonwealth Exhibit C-1 at 4. Dr. Mapes stated that

Appellant’s voyeuristic disorder was “considered a lifelong disorder which can

be treated but not cured, and the manifestation of which may wax and wane

across [his] lifetime.” Id. at 5. In providing his professional opinion within a

reasonable degree of professional certainty, Dr. Mapes stated that Appellant

was likely to commit future sexually violent offenses against strangers and

persons with whom Appellant had some degree of a relationship because

____________________________________________

8 Dr. Mapes classified Appellant as a “video voyeur,” which he defined as a

person who “set[s] up complicated equipment in bathrooms, bedrooms, or

other intimate places to see [] victims naked[,] disrobing[,] or [engaging in]

intercourse.” Commonwealth Exhibit C-1 at 5. Dr. Mapes explained that video

voyeurs “take more risks” than pseudovoyeurs, opportunistic voyeurs, or

computer voyeurs because video voyeurs “may actually visit the homes of the

victims.” Id.

9 Dr. Mapes defined “paraphilia” as a “sexual interest which may reflect

‘normal’ sexual interests or ‘deviant’ sexual interests.” Commonwealth Exhibit

C-1 at 4. Dr. Mapes stated Appellant reported he was sexually aroused by

coprophilia (arousal to feces), coproscopist (arousal from observing someone

defecating), eprectolagnia (arousal to flatulence), and urophilia (arousal to

urine). Id. Dr. Dattilio reported Appellant’s interest in these paraphiliae but

noted that Appellant stated he found them “cynically humorous but not

sexually arousing [] to the same degree that he found unobtrusively observing

or videoing women undressing or using the toilet.” Defense Exhibit D-1 at 11.

Dr. Dattilio opined that Appellant’s interests were not “deviant sexual interests

involving arousal” and did not “rise to the level of a paraphilic disorder.” Id.

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[o]ne who suffers from voyeuristic disorder, [one] who has

multiple deviant sexual interests, one who has over 90 [prior]

victims, and one who has engaged in voyeurism for at least six

months[, as is the case with Appellant,] is considered more likely

to reoffend than one who does not suffer from this disorder.

Id. (extraneous capitalization omitted).

Dr. Dattilo, upon conducting an evaluation of Appellant, in which

Appellant participated, stated that, “[w]hile [Appellant] is considered in some

ways ‘more likely to reoffend than one who does not suffer from [voyeuristic]

disorder,’ with treatment, this condition has significantly reduced in

[Appellant’s] case.”10 Defense Exhibit D-1 at 18. In assessing whether

Appellant’s voyeuristic disorder was likely to cause Appellant to engage in

future predatory sexually violent offenses, Dr. Dattilo questioned whether “the

diagnosis of voyeurism meets the statutory criteria of a ‘violent’ sexual offense

or as increasing the risk to engage in ‘violent sexual offenses’” because

voyeurism is a noncontact offense. Id. at 18-19. Dr. Dattilo stated,

I [] respectfully disagree with Dr. Mapes that [Appellant] meets

the criteria for predatory behavior in the respect that it would

qualify him to be a [SVP.] While [Appellant] clearly engaged in

____________________________________________

10 Dr. Dattilo stated,

Voyeuristic disorder can be a lifetime disorder depending on the

degree and intensity as well [as] its response to treatment. In

cases in which individuals do not invest in treatment or receive

inadequate treatment, the manifestation can wax and wane across

the lifespan but [is] likely not to do so when a strong commitment

to treatment and rehabilitation is made and they receive intensive

intervention that is effective.

Defense Exhibit D-1 at 18.

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predatory behavior, the conditions of his actions require

perspective that because of [Appellant’s] autism,[11] he is prone

to objectify the victim, separating this from any intended violent

act. Therefore, the likelihood of determination that it is

irreversibly repetitive depends on his response to treatment.

Id. at 19. Dr. Dattilio opined, “to a reasonable degree of psychological

certainty[,]” that Appellant was “a low risk to reoffend, particularly due to the

fact that he has been involved in intensive treatment and has made excellent

progress.” Id. at 21.

Viewing the evidence in the light most favorable to the Commonwealth,

as the prevailing party, we concur with the trial court that there was sufficient

clear and convincing evidence to designate Appellant as a SVP. Appellant was

convicted of a sexually violent offense as defined by SORNA, namely invasion

of privacy. Both experts agreed that Appellant suffered from voyeuristic

disorder, which is a lifelong condition that can “wax and wane” depending

upon a person’s level of and response to treatment but that cannot be cured.12

Moreover, both experts noted that Appellant’s voyeuristic disorder led to his

predatory acts of recording 90 victims in spaces in which the victims had an

____________________________________________

11 Dr. Dattilo diagnosed Appellant as suffering from an autism spectrum

disorder. Defense Exhibit D-1 at 13 (stating, Appellant “does meet the criteria

for [an] autism spectrum [disorder, specifically] what was previously referred

to in the diagnostic nomenclature as Asperger syndrome”).

12Although Dr. Dattilo acknowledged that voyeuristic disorder can be a lifelong

condition, see Defense Exhibit D-1 at 18, he stated that Appellant’s

cooperation with police and his remorse for his actions were “major

steppingstone[s] towards his complete rehabilitation.” Defense Exhibit

D-1 at 20. This statement suggests that Appellant can be cured, or fully

rehabilitated, of his voyeuristic disorder.

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expectation of privacy that Appellant invaded. Dr. Mapes, who’s assessment

report the trial court found to be credible, opined to a reasonable degree of

professional certainty that Appellant met all the criteria for classification as a

SVP under Pennsylvania law and, in particular, that Appellant was likely to

commit future predatory sexually violent offenses as a result of his voyeuristic

disorder. As such, Appellant’s sufficiency claim is without merit.13

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/10/2021

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13 [A Sexual Offenses Assessment Board] report or opinion that [an]

individual has an abnormality indicating the likelihood of predatory

sexually violent offenses[, such as Dr. Mapes’s assessment report

of Appellant,] is itself evidence. [W]hile a defendant is surely

entitled to challenge such evidence by contesting its credibility or

reliability before the SVP court, such efforts affect the weight, not

the sufficiency of the Commonwealth's case. Accordingly, they do

not affect our sufficiency analysis.

Feucht, 955 A.2d at 982 (citations omitted).

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