Com. v. Wright, E.

J-A18025-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

EDWARD E. WRIGHT :

:

Appellant : No. 988 WDA 2021

Appeal from the Judgment of Sentence Entered July 22, 2021

In the Court of Common Pleas of McKean County

Criminal Division at CP-42-CR-0000204-2020

BEFORE: STABILE, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY MURRAY, J.: FILED: SEPTEMBER 7, 2022

Edward E. Wright (Appellant) appeals from the judgment of sentence

imposed after he pled guilty to indecent assault (without consent), indecent

assault (complainant less than 16), and corruption of minors.1 We affirm.

The trial court summarized the case history as follows:

A.A. … began working at Wright’s Music Shed, which is

owned by [Appellant], [in 2017,] when she was 14. She

considered [Appellant] as “somewhat of a mentor.” When she

was 15 and still working at Wright’s Music Shed[, Appellant] began

complimenting her, including calling her “beautiful.” He then

began touching and massaging her. This led to him touching, or

as [A.A.] described it, “cupping,” her breasts. He also “rubbed”

her inner thigh. This behavior took place in a secluded upstairs

office. [Appellant] told A.A. that he wanted to have a relationship

with her when she turned 18. At the time [Appellant] committed

these offense[s,] he was 66 or 67 years old.

____________________________________________

1 18 Pa.C.S.A. §§ 3126(a)(1) and (8), and 6301.

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[Appellant] was previously convicted at McKean County

Docket [] 128 CR 1986 of: three (3) counts of corruption of

minors, 18 Pa.C.S. § 6301; three (3) counts of indecent exposure,

18 Pa.C.S. § 3127; and four (4) counts of indecent assault, 18

Pa.C.S. § 3126. At the time the Appellant committed these prior

offenses, he was a band director at the Bradford Area High School.

His responsibilities as a band director included instructing and

supervising male and female teenage students. He formed

relationships with several of his female students and thereafter

sexually assaulted them. There were three teenage victims at 128

CR 1986, with separate incidents of sexual assault, indecent

exposure and corruption of minors involving each of them.

Trial Court Opinion, 10/11/21, at 3-4.2

Appellant entered his guilty plea on January 7, 2021. That same day,

the trial court ordered Appellant to undergo an assessment as to whether he

met the statutory requirements for classification as a sexually violent predator

(SVP).

The trial court held an SVP hearing on July 11, 2021. Gregory A. Henry,

Esquire (Trial Counsel), appeared on Appellant’s behalf. The Commonwealth

presented testimony from (1) the investigator assigned to Appellant’s case,

an agent of Pennsylvania’s Sexual Offenders Assessment Board (SOAB); and

(2) Appellant’s SOAB evaluator, Brenda Manno, MSW, LCSW (Ms. Manno).

The court qualified Ms. Manno as an expert in the field of sex offender

assessment without objection by Appellant. N.T., 7/11/21, at 18.

____________________________________________

2Appellant also committed sex offenses against a fourth minor female in the

1980s.

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Ms. Manno testified that she evaluated Appellant and made findings with

respect to each of the SVP assessment factors set forth at 42 Pa.C.S.A. §

9799.24(b)(1)-(4). See N.T., 7/11/21, at 18-28. She opined that Appellant

“met the diagnostic criteria for unspecified paraphilic disorder as is found in

the DSM-5.”3 Id. at 28-29; see also id. at 25 (“[I]n the DSM-5, paraphilia

involves intense thoughts, fantasies or behaviors spanning at least a six-

month period.”). Ms. Manno further testified that Appellant posed a risk for

reoffending:

[H]aving the paraphilic diagnosis indicat[es] we do have an

established pattern of sexually deviant behavior with children,

that increases [Appellant’s] likelihood of offending versus other

offenders who do not have such diagnoses.

Id. at 28. Noting the significant age difference between Appellant and A.A.,

Ms. Manno stated, “recidivism tends to decline with age, [but Appellant]

clearly recidivated even after he was over 60 years of age.” Id. at 23; see

also id. at 39-42, 44-47 (Trial Counsel cross-examining Ms. Manno about

recidivism and elderly offenders). Ms. Manno concluded Appellant “does meet

the criteria to be deemed a sexually violent predator under statute.” Id. at

30.

A dispute arose with respect to the qualification of Appellant’s expert,

Robert Maiden, Ph.D. (Dr. Maiden), a licensed clinical psychologist and

____________________________________________

3 The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition

(DSM-5) is a widely used manual for psychiatric diagnosis. See, e.g.,

Commonwealth v. Woeber, 174 A.3d 1096, 1107 n.11 (Pa. Super. 2017).

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professor at Alfred University in New York. Id. at 53. The trial court issued

a “split decision,” qualifying Dr. Maiden as an expert as to whether an

individual has “unspecified paraphilic disorder,” but not as to whether

an individual is an SVP. Id. at 70-71.

As we discuss in greater detail below, Dr. Maiden testified that Appellant

did not meet the diagnostic criteria for “unspecified paraphilic disorder.” Id.

at 74-75; see also id. at 79-80. In particular, Dr. Maiden opined that

Appellant did not exhibit the requisite “irresistible urge” symptoms. See id.

at 74-75.

The trial court found the Commonwealth proved that Appellant met the

requirements for classification as an SVP. Id. at 120. The court explained its

reasoning as follows:

Each side has really had me thinking today. And a big

reason for that is we have two good professionals in their field

provide different opinions. And it’s difficult because they both

have good qualifications[.] …

So it comes down to [] whose opinion should the court

accept … from these two veteran, qualified individuals. … And it

comes down to a couple points that I’m going to outline.

First, it was appropriate … [for] the defense to

emphasize that the rate of recidivism goes down with age.

That was brought up through the direct testimony of expert [Ms.]

Manno. And she provided those numbers. They’re in the record.

They’re … very low. … Almost … down to zero. But not zero. So

… that’s a factor here because I have to decide does [Appellant]

have unspecified paraphilic disorder, and will he re-offend.

….

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[A]ge is a relevant factor here[.] ... There’s no dispute

about it, that the likelihood of re-offending goes way down

with age. The studies show, as was said several times here.

….

[Appellant is] 66 and he committed the offense[s]. So

to get into the statistics, the statistics say that’s unlikely

for him to have … done that. But he did.

….

I will accept that [Appellant] will be into his 70s, or close to

it when his period of confinement is done. But if he’s this age and

he offended, the statistics from the general group don’t have a lot

of meaning because if he’s 66, when he’s 75 or 72 or whatever, is

there a lot of difference between when he was 66[?] … So the

reference to studies and the low numbers of re-offending

doesn’t have a lot of bearing as it would if [Appellant] was

30 because considering his age now, it’s difficult to apply

the statistical analysis here. …

….

And one thing that I really struggled with [is] how I should

[] analyze the assertion that well, in 1986 there were several

victims. And now we’re 30 years out and [until this case] there’s

no other victims. Now, [Dr. Maiden made] … reference to

there’s no other reports. And then I really struggled with that.

Well, that’s true, there are no other reports. [Appellant] wasn’t

convicted of any offenses since … 1986. And the court certainly

can’t consider something that isn’t in the record. So there’s no

reports. That’s a factor. I agree it is. But then [Dr. Maiden]

even went further. [] Dr. Maiden went way out on that and said

well, … in today’s world with the internet and everything, we’d

know. [W]e’d know if there w[ere] other victims. And I reject

that assertion completely. There are many victims who do not

come forward for a variety of reasons.

….

So I can’t find here that there were other victims. But

I certainly can’t find that I have to 100 percent conclude

there weren’t because no one else reported an offense. And

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that isn’t as much a factual issue as it goes to the understanding

of sexual offenses and whose opinion to accept or not.

That … really drew me to the conclusion that I’m going to

accept the opinion of expert [Ms.] Manno, her history,

training, experience. I’m not downplaying … Dr. Maiden. …

You know, his experience as outlined in his curriculum vitae shows

he does have great experience.

However, as [Dr. Maiden] said, [he is] like [a] general

practitioner. [He has] to cover a lot of areas. It’s different with

[Ms.] Manno. She’s covered this area, treatment of sex offenders,

understanding them, training regarding them, [and she has

performed] … thousands of [SVP] evaluations. More where

individuals were found not to be sexually violent predators than

where they were. So again, I accept her opinion. I believe [Ms.

Manno] has much broader and specific knowledge

regarding … sex offenses and a specific diagnosis.

I also had a real hard time with the assertion[, by Dr. Maiden

on direct examination,] that if someone has a disorder, … they

would act out all the time. Even individuals with disorders, there

are certainly those that can’t control [urges] at all, period. But

there are others that will look for opportunities and not take

risks[.] …

So I had a real problem with well, because someone doesn’t

act out all the time, they wouldn’t have this condition. I didn’t

accept that. I felt that the explanation of what is required for [an

SVP] diagnosis was clear, and more acceptable from [Ms.] Manno.

….

So I find [Appellant] is an SVP, sexual violent predator. I

find that the Commonwealth has demonstrated that by

clear and convincing evidence.

Id. at 115-20 (emphasis added).

On July 22, 2021, the trial court sentenced Appellant to an aggregate 1

– 2 years of imprisonment, followed by 4 years of probation. The court also

ordered Appellant to register as a sex offender for life, pursuant to

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Pennsylvania’s Sex Offender Registration and Notification Act (SORNA), 42

Pa.C.S.A. §§ 9799.10—9799.42.4 Appellant timely appealed. Both Appellant

and the trial court have complied with Pa.R.A.P. 1925.

Appellant presents eight issues for review:

1.) Did the lower court err in ruling that the Appellant’s expert

could testify about whether, under the DSM-5, the Appellant

has unspecified paraphilic disorder – but could not testify

about how the Appellant’s age affected his likelihood of

reoffending?

2.) Did the lower court err in ruling that only the

Commonwealth’s expert, who it questioned on the issue,

could testify about how the Appellant’s age affected his

likelihood of reoffending?

3.) Did the lower court err in prohibiting the Appellant’s expert

from testifying about a particular study … of which he was

aware that challenged the Commonwealth’s expert’s

knowledge of recidivism rates in offenders over 60 and over

70 years of age?

4.) Did the lower court err in ruling that the Appellant’s expert

could not testify whether or not the Appellant was an SVP,

that the Appellant’s expert was not qualified to testify about

most all SVP assessment factors recited at Title 42 Pa.C.S.A.

§ 9799.58(b)(1) through (b)(4),[5] and that he could not, in

particular, testify about the assessment factor at Title 42

Pa.C.S.A. § 9799.58(b)(4)?

5.) Did the lower court err in assuming, and in concluding, that

the Appellant may have re-offended from 1986 through

____________________________________________

4 Appellant is subject to SORNA Revised Subchapter H, as he committed the

offenses against A.A. after December 20, 2012. See Commonwealth v.

Torsilieri, 232 A.3d 567, 573-74 (Pa. 2020) (explaining amendments).

5 Appellant cites SORNA Revised Subchapter I, despite being subject to

Revised Subchapter H. Regardless, the 15 statutory SVP factors apply to both

subchapters.

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November/December 2018 – even though no evidence to this

effect was introduced – thereby improperly shifting the

burden of proof from the Commonwealth to the Appellant and

diluting the clear and convincing burden of proof required?

6.) Did the lower court err in concluding that the Appellant’s

expert’s review of relevant statutes and cases demonstrated

his lack of qualifications to testify about the assessment

criteria at 42 Pa.C.S.A. § 9799.58 and about the Appellant’s

alleged SVP status?

7.) Did the lower court err in concluding that the Appellant’s

expert could not testify about the Appellant’s likelihood of

reoffense, about the assessment factor at 42 Pa.C.S.A.

§ 9799.58(b)(4), and about how the Appellant’s age was

relevant to his likelihood of re-offense – after the

Commonwealth opened the door for the Appellant’s expert

testimony on those issues?

8.) Did the lower court err in questioning why the Appellant even

wanted his expert to challenge the Commonwealth’s expert’s

opinion on the recidivism rates of offenders past 70 years of

age – because the rates of recidivism recited [by] the

Commonwealth’s expert were “very low”?

Appellant’s Brief at 6-8 (footnote 5 added, some citations modified).

Though Appellant presents eight issues, he makes one argument,

without subheadings or distinction. See id. at 11-32. Pursuant to Pa.R.A.P.

2119(a):

The argument shall be divided into as many parts as there are

questions to be argued; and shall have at the head of each part--

in distinctive type or in type distinctively displayed--the particular

point treated therein, followed by such discussion and citation of

authorities as are deemed pertinent.

Id. We overlook this defect, and like Appellant, address the issues together.

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Each of Appellant’s issues implicate the trial court’s evidentiary rulings

and its qualification of Dr. Maiden. We review these claims mindful of the

following:

The admission of evidence is a matter vested within the

sound discretion of the trial court, and such a decision shall be

reversed only upon a showing that the trial court abused its

discretion. The standard for qualification of an expert witness is

a liberal one. The test to be applied when qualifying an expert

witness is whether the witness has any reasonable pretension to

specialized knowledge on the subject under investigation. If he

does, he may testify and the weight to be given to such testimony

is for the trier of fact to determine. A witness does not need

formal education on the subject matter of the testimony, and may

be qualified to render an expert opinion based on training and

experience.

Expert testimony is permitted as an aid to the jury when the

subject matter is distinctly related to a science, skill, or occupation

beyond the knowledge or experience of the average layman.

Conversely, expert testimony is not admissible where the issue

involves a matter of common knowledge.

Commonwealth v. Smith, 206 A.3d 551, 560 (Pa. Super. 2019) (citations

omitted). Further, evidence is only admissible if relevant, i.e., where it has

probative value with respect to a material fact. Pa.R.E. 402.

Pursuant to Pennsylvania Rule of Evidence 702:

A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an

opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized

knowledge is beyond that possessed by the average

layperson;

(b) the expert’s scientific, technical, or other specialized

knowledge will help the trier of fact to understand the

evidence or to determine a fact in issue; and

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(c) the expert’s methodology is generally accepted in the

relevant field.

Pa.R.E. 702. The burden of proof is on the proponent to establish the expert

meets the criteria of Rule 702. Commonwealth v. Walker, 92 A.3d 766,

790 (Pa. 2014).

Finally, expert testimony in a criminal proceeding implicating sex

offenses is governed by 42 Pa.C.S.A. § 5920, which provides:

(b) Qualifications and use of experts.—

(1) In a criminal proceeding subject to this section, a

witness may be qualified by the court as an expert if the

witness has specialized knowledge beyond that possessed

by the average layperson based on the witness’s experience

with, or specialized training or education in, criminal justice,

behavioral sciences or victim services issues, related to

sexual violence, that will assist the trier of fact in

understanding the dynamics of sexual violence, victim

responses to sexual violence and the impact of sexual

violence on victims during and after being assaulted.

(2) If qualified as an expert, the witness may testify to facts

and opinions regarding specific types of victim responses

and victim behaviors.

42 Pa.C.S.A. § 5920(b)(1)-(2).

Appellant argues the trial court erred regarding its limited qualification

of Dr. Maiden. See Appellant’s Brief at 10-33. Appellant claims:

The lower court’s rulings: 1) that Dr. Maiden was not qualified

regarding sexual predator evaluations and the factors (see 42

Pa.C.S. § 9799.58(b)(1) through (b)(4)) that go into them; 2)

that Dr. Maiden was not qualified as an expert to say whether the

Appellant is, or is not, a violent sexual predator; 3) that he was

qualified only as an expert in the DSM-5 and about whether or not

the Appellant has an unspecified paraphilic disorder; and 4) that

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Dr. Maiden was not qualified to testify about recidivism rates in

elderly offenders and their application to the Appellant –

effectively permitted Dr. Maiden to testify only about [the] SVP

assessment factor [at] § 9799.58(b)(3)(iii) [(“Characteristics of

the individual, including … mental illness, mental disability or

mental abnormality”)], and no others. Most particularly, the lower

court’s rulings prohibited Dr. Maiden from testifying about any

factor, such as age, (see [id.] § 9799.58(b)(4)) that would be

reasonably related to the risk of re-offense.

Appellant’s Brief at 24-25. Appellant requests “remand[] to the lower court

for the conduct of a new SVP hearing where the Appellant’s expert is qualified

to offer an opinion and report about all assessment criteria recited at [] 42

Pa.C.S.A. § 9799.58.” Id. at 33.

In response, the Commonwealth argues:

Appellant’s complaints that the trial court would not accept

testimony about recidivism at older ages is misplaced. The trial

court accepted it a[s] true but found [Appellant] did, in fact,

reoffend in his late 60s, even if that fact is inconsistent with

general statistics.

***

[D]espite finding [Dr. Maiden] an expert in some areas but

not others, the court actually did consider Dr. Maiden’s testimony,

but it made it clear [that the court] found the opinion of Ms. Manno

to be more accurate and her qualifications more significant. This

determination was within the discretion of the court and was

supported by the record.

Commonwealth Brief at 5, 8. Upon review, we conclude the record supports

the Commonwealth’s assessment.

SORNA requires a trial court to order a defendant convicted of a

“sexually violent offense” to be assessed by the SOAB. 42 Pa.C.S.A. §

9799.24(a); see also id. § 9799.12 (defining sexually violent offense). The

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SOAB is responsible for conducting an assessment to determine whether the

individual should be classified as an SVP. Id. § 9799.24(b). The assessment

involves 15 factors, set forth at 42 Pa.C.S.A. § 9799.24(b)(1)-(4). See also

Commonwealth v. Brooks, 7 A.3d 852, 863 (Pa. Super. 2010) (all 15 factors

need not be present to support an SVP designation).

Under SORNA, an SVP is an individual who has been convicted of one of

the enumerated sex offenses, and “who is determined to be a[n 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. An act is considered

“predatory” 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.” Id.

After the SOAB completes its assessment, the trial court holds a hearing

to “determine whether the Commonwealth has proved by clear and convincing

evidence that the individual is a[n SVP].” Id. § 9799.24(e)(3).

The specific question for … any [] expert who testifies at an SVP

hearing[] is whether the defendant satisfied the definition of

sexually violent predator set out in the statute, that is, whether

he or she suffers from “a mental abnormality or personality

disorder that makes the individual likely to engage in predatory

sexually violent offenses.”

Commonwealth v. Dixon, 907 A.2d 533, 536 (Pa. Super. 2006) (citation

omitted).

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Here, Appellant sought to present Dr. Maiden as an expert with respect

to whether Appellant was an SVP. N.T., 7/11/21, at 53. Dr. Maiden testified

that he performed a psychological evaluation of Appellant, and reviewed Ms.

Manno’s SOAB report concerning Appellant. Id. at 59-60. Dr. Maiden

responded in the affirmative to Trial Counsel asking: “[A]re you sufficiently

qualified to evaluate Ms. Manno’s conclusion about whether or not [Appellant]

has a mental abnormality or personality disorder as set forth in the DSM?”

Id. at 62. Trial counsel then sought to

qualify Dr. Maiden as an expert in the … psychological evaluation

of individuals, including individuals that have been convicted of

sex crimes, and as an expert sufficient to evaluate the conclusions

of Ms. Manno as set forth in her report …, specifically the

conclusion that [Appellant] has a mental abnormality or a

disability, that specifically being unspecified paraphilic

disorder as set forth in the DSM-5.

Id. at 62-63 (emphasis added).

Dr. Maiden testified that he resides in New York State and has “not had

any training regarding the Pennsylvania sexual assessment.” Id. at 63; see

also id. at 66 (stating he never performed an SVP assessment). Dr. Maiden

testified he had some experience evaluating sex offenders in New York. Id.

at 64-65; see also id. at 65 (Dr. Maiden testifying, “New York State has a

different type of law. But I have made … evaluations in terms of [sex

offenders’] likelihood of re-offending and their threat to society.”). In further

questioning by Trial Counsel, Dr. Maiden confirmed he had reviewed

information including case law on Pennsylvania law that dealt with

the definition of the terms mental disability and mental

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abnormality, all for the purpose of permitting [Dr. Maiden] to

assess [Appellant] and to evaluate the report of Ms. Manno[.]

Id. at 68.

The Commonwealth objected to the qualification of Dr. Maiden as an

SVP expert, arguing:

[T]his is a very particular area that [Dr. Maiden] is not

qualified to give an opinion on. By his own admission, it sounds

like he read some case law. But we’re talking about whether

somebody has … experience, knowledge, [or] something above

what other people have. And he doesn’t have any education or

experience regarding this particular issue.

There may be other things that he could be qualified as an

expert on and probably has. But what he’s being asked to give

an expert opinion [on] here is beyond his area of expertise as has

been presented.

Id. at 69. Trial Counsel argued to the contrary. See id. at 69-70.

The trial court then decided:

THE COURT: Okay. This is going to be a split decision. …

[Dr. Maiden] has never … made an SVP determination. He

indicated, … while we don’t have Megan’s Law in New York, [] I

believe that we have similar things here, the tiers and things. So

he’s not an expert, he’s not qualified regarding sexual violent

predator evaluations, the factors that go into them. So I’m not

qualifying him in that area.

What I will qualify him in … as an expert is whether

an individual, in particular [Appellant], has unspecified

paraphilic disorder. That’s part of the conclusion that [Ms.]

Manno looked at[.]

And [Dr. Maiden] is qualified as an expert in the DSM-

5 … [and] whether someone [does] or … does not have an

unspecified paraphilic disorder. He is an expert in in that field.

He can render an opinion on that. But he’s not qualified as an

expert to say [Appellant] is or isn’t [a] sexual[ly] violent predator.

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Id. at 70-71 (emphasis added). We discern no error or abuse of discretion.

On direct examination, Trial Counsel asked Dr. Maiden whether

Appellant met the criteria for “unspecified paraphilic disorder, as that term is

defined in DSM-5[.]” Id. at 74. Dr. Maiden responded:

It’s my opinion or belief that [Appellant] does not meet

that diagnosis, and because he lacks certain really key

symptoms that characterize such people.

….

[W]e do not see the intensity or the irresistible urge

symptoms in [Appellant]. I’m not in any way saying or supporting

or anything that he did was normal or acceptable. I’m just stating

that it does not meet the diagnostic criteria of the DSM-5.

Id. at 74-75 (emphasis added). Dr. Maiden agreed with Ms. Manno that

unspecified paraphilic disorder is a “lifetime, chronic condition[.]” Id. at 80.

Unlike Ms. Manno, however, Dr. Maiden opined Appellant did not suffer from

this condition and stated, “I do not believe that [Appellant] would have been

able to function for 35 years … living a normal lifestyle and maintaining a

marriage with all kinds of children … around him” without incident. Id.;6 cf.

____________________________________________

6 Regarding Appellant’s offenses involving A.A., Dr. Maiden emphasized on

direct

the fact that [A.A.] remained [working at Appellant’s music store]

for months afterwards, after those [inappropriate] encounters,

and he did not approach her or attempt to do any kind of sexual

act. That would be almost impossible in my opinion as somebody

that has that diagnosis[, i.e., unspecified paraphilic disorder].

Id. at 76.

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42 Pa.C.S.A. § 9799.12, supra (defining an SVP as an individual, convicted

of one of the enumerated offenses, who has “a mental abnormality or

personality disorder that makes the individual likely to engage in predatory

sexually violent offenses.”).

Trial Counsel then asked Dr. Maiden whether he was “familiar with

literature on recidivism rates for individuals in their late 50s, 60s, and 70s?”

Id. at 81. The Commonwealth objected to this question as “beyond the scope

of [Dr. Maiden’s] expertise.” Id. The trial court sustained the objection,

agreeing it was “outside of [Dr. Maiden’s] qualification as an expert.” Id. at

82. Trial counsel noted his exception to the ruling. Id.

On cross-examination, the Commonwealth asked Dr. Maiden, “how do

you know [Appellant] did not attempt to victimize young women” between his

sex assaults in the 1980s and his assaults of A.A. Id. at 83. Dr. Maiden

answered:

Well, we don’t know that for 100 percent sure, right? But

we would know if criminal cases came up for people who filed

charges or complained about [Appellant’s] inappropriate

approaches. And in today’s world, I think that would occur.

Id. (emphasis added).

Regarding the DSM-5 definition for unspecified paraphilic disorder, the

Commonwealth asked Dr. Maiden:

Q. Do you agree with me that having five victims of a similar

age in a similar inferior position would denote a preferential sexual

interest in that group of characteristics?

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A. I don’t think you could say that that is his preferential area

of interest because [Appellant] states that he’s been happily

married and [has] a good sex life with his second wife.

Id. at 95.

Trial Counsel subsequently argued to the trial court:

[P]articularly since [Dr. Maiden has] been allowed to testify about

the likelihood of re-offense, if he were not permitted to testify

about studies with which he is familiar as to how [Appellant’s] age

after he is done with probation would impact upon the likelihood

of reoffense, that seems terribly illogical to me.

Id. at 100.

The trial court responded:

I’m not changing my ruling. There’s already evidence in the

record that it’s 3.8 percent in your 60s[, i.e., the statistical

recidivism rate]. And then there’s evidence that it goes down one

point to 2.8 [percent]. So why you’d want to question [Dr.

Maiden] anyway when that’s already in the record and isn’t in

dispute, I’m not sure.

Id.

The Commonwealth questioned Ms. Manno on re-direct. See id. at 102-

05. With respect to Dr. Maiden’s testimony regarding Appellant’s 35-year

period of not re-offending, Ms. Manno testified, “to say [Appellant] would

victimize anyone he had access to that was, let’s say a postpubescent female,

I think is a very inaccurate statement to make.” Id. at 103-04. The

Commonwealth asked, “does it say anything to you about [Appellant’s]

impulse control that he had been punished previously, yet did it again?” Id.

at 104. Ms. Manno replied:

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Yes. And … we have no idea about [Appellant’s] urges or fantasies.

All we know about is behavior. So we know that he engaged in this

behavior again and recidivated because we’re here today. That

doesn’t mean[] that there were urges and behaviors that he had

that perhaps were controlled over time.

Id.

At the close of testimony, Trial Counsel moved for admission of Dr.

Maiden’s report. Id. at 105. The Commonwealth objected. Id. The trial

court overruled the objection, explaining:

I am going to allow it in. It’s up to [t]he [c]ourt to weigh the

report and to distinguish the portions that were allowed to be

presented, that [Dr. Maiden] was qualified as an expert for, and

those that he wasn’t. Of course, if he wasn’t qualified as an expert

in an area, and there’s an opinion in his report regarding that, it

will be disregarded by the [c]ourt because it’s outside of the area

that he was qualified as an expert in.

Id. at 105-06.

The trial court quoted Dr. Maiden’s expert report, admitted as Exhibit 6,

in further explaining:

The court did not accept the opinions and conclusions expressed

by [Appellant’s] purported expert, Dr. Robert Maiden, Ph.D. Dr.

Maiden had little prior experience regarding sexually violent

predator evaluations. Further, he utilized troubling factors in

reaching his conclusions, such as: 1) since [Appellant’s] victims

were not minors[,] as they were not under the age of 12, the

criteria to classify [Appellant] as a SVP have not been met. We

reject this assertion. The significance of [Appellant’s] pattern

here, of using his position as a supervisor over young females to

isolate and sexually assault them, is not lessened by the fact that

none of them were less than 12 years old. The goal of [SORNA]

is to require registration and notification to protect all juvenile

females, not just those under the age of 12; 2) [Appellant]

stopped pursuing the victim, A.A., after she “ignored him and

became angry;” and, “if [Appellant] was a person who suffers

from paraphilia because of the persistence and intensity of his

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feeling, he would be unable to stop or control his behavior and

would continue to pursue the Victim to engage in further and more

intense sexual behavior with him.” Ex. 6 at 7-8. We reject his

assertion.

A.A., a 15-year-old, knew that something was wrong when

a 66- or 67-year old individual was fondling her. Therefore, she

cut off contact with him. At that point[, Appellant] recognized

that, if he tried to maintain contact, it was likely A.A. would reach

out for help and contact law enforcement. He knew there was no

reason to contact A.A. because there was no chance of victimizing

her again and it would only lead to being caught. In the past[,

Appellant] moved on to other victims when the opportunity with

one of them ended, and that pattern was repeated here; 3)

“[Appellant] is a married man who is the father of four children

whom he raised along with his wife. For over 35 years[, Appellant]

maintained for all practical purposes a happy and normal marriage

and family life.” (Ex. 6 at 8). We reject this assertion. First,

other than [Appellant’s] self-serving statements to Dr. Maiden,

there is nothing in the record to support these conclusions.

Second, the assertion that [Appellant] has a good relationship

with his family and wife supports the assertion that he is unable

to control his desire to abuse juvenile females. With so much to

risk, including harm to his spouse and family, he still acted on his

urges, sexually assaulting yet another victim. His decision to act

despite the consequences to himself and others demonstrates that

he will likely act out again in the future – regardless of whether

he has a good or bad family situation; 4) “It is well known the

odds of recidivism are quite low for someone who is 69 years old

who would be 71/72 once he is released into the parole system

which would oversee him for another 6 years;” and “in fact, recent

studies indicate that recidivism occurs at [a] rate of 2 percent for

those over the age of 55 ….” (Ex. 6 at 8). [Appellant] was 66 or

67 when he sexually assaulted A.A. Therefore, by the statistics

set forth by Dr. Maiden, [Appellant] already falls in that very rare

group, the “less than 2% group, that re-offends after the age of

55.” Since [Appellant] did re-offend at a mature age already, it is

unreasonable to assume that, in a few years the urges that were

not controlled when he was 66 or 67 will suddenly vanish.

Trial Court Opinion, 10/11/21, at 5-6 (citations modified).

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After careful review, we adopt the trial court’s analysis and conclusion,

which is supported by the record and applicable law. We discern no abuse of

the court’s broad discretion in its rulings with respect to Dr. Maiden’s expert

qualification. Smith, supra. Accordingly, Appellant is not entitled to relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/7/2022

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