Com. v. Brown, L

J-S39033-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

LANCE EDMOND BROWN :

:

Appellant : No. 606 MDA 2022

Appeal from the Judgment of Sentence Entered December 30, 2021

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

No(s): CP-22-CR-0001315-2020

BEFORE: PANELLA, P.J., BENDER, P.J.E., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.: FILED: FEBRUARY 23, 2023

Appellant Lance Edmond Brown appeals from the judgment of sentence

imposed after he pled guilty to aggravated indecent assault and related

offenses. Appellant argues that the trial court erred in determining that he

was a sexually violent predator (SVP). We affirm.

Briefly, Appellant was arrested and charged with multiple offenses based

on allegations that he sexually abused his minor stepdaughter multiple times

over a two-year period. The trial court summarized the subsequent procedural

history of this matter as follows:

On February 25, 2021, [Appellant] pled guilty to aggravated

indecent assault, unlawful contact with a minor, two (2) counts of

indecent assault, and corruption of minors.[1] On March 15, 2021,

we issued an order directing [Appellant] to be assessed by the

Pennsylvania Sexual Offender Assessment Board (SOAB) to

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1 18 Pa.C.S. §§ 3125(a)(8), 6318(a)(1), 3126(a)(7), (a)(8), and

6301(a)(1)(ii), respectively.

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determine if he met the criteria for classification as [an SVP]. On

December 30, 2021, we sentenced [Appellant], pursuant to a

negotiated plea agreement, to a term of incarceration of not less

than two and one-half (2 1⁄2) nor more than five (5) years in a

state correctional institution with ten (10) years of consecutive

probation.

On February 11, 2022, an SVP hearing was held at which the

Commonwealth presented the expert testimony of Dr. Robert

Stein, and [Appellant] presented the expert testimony of Dr.

Christopher Lorah. At the conclusion of the hearing, we took the

matter under advisement.

* * *

On March 24, 2022, we issued an order finding that the

Commonwealth had established, by clear and convincing

evidence, that [Appellant] is an SVP.

Trial Ct. Op., 4/27/22, at 1-2 (some formatting altered).

Appellant filed a post-sentence motion which the trial court denied.

Appellant subsequently filed a timely notice of appeal and a court-ordered

Pa.R.A.P. 1925(b) statement. The trial court issued a Rule 1925(a) opinion

addressing Appellant’s claims.

On appeal, Appellant raises the following issue for review:

Whether the trial court erred in finding [that Appellant was an

SVP] where the Commonwealth failed to prove by clear and

convincing evidence that [Appellant] is a sexually violent predator

when the Commonwealth’s expert failed to articulate the

likelihood of [Appellant] to reoffend and instead relied upon the

utility of SVP status for community safety?

Appellant’s Brief at 6.

In his sole claim, Appellant challenges the sufficiency of the evidence

supporting his SVP designation. Initially, Appellant acknowledges that Dr.

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Stein testified that Appellant suffers from a mental abnormality and that he

engaged in predatory behavior. Id. at 22-24. However, Appellant argues

that “Dr. Stein’s opinion failed to provide evidence that, based on this conduct

and the predatory conduct within this case, there was a likelihood that

[Appellant] would reoffend.” Id. at 25-26. Further, Appellant argues that

although Dr. Stein analyzed the statutory factors, “his testimony failed to

show how, taken together, there is a likelihood to reoffend other than in this

instance, there was sustained sexual deviance.” Id. at 26. Therefore,

Appellant asserts that because “the evidence failed to show that the mental

abnormality would lead to a higher likelihood that he would reoffend,” the trial

court erred in designating him as an SVP. Finally, to the extent Appellant’s

interpretation of the SVP statute is inconsistent with this Court’s precedent,

Appellant requests that we revisit our prior decisions and adopt the three-part

SVP test rejected by this Court in Commonwealth v. Dixon, 907 A.2d 533

(Pa. Super. 2006).

In reviewing Appellant’s sufficiency claim, our standard of review is as

follows:

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

following an assessment by the [SOAB] . . . and hearing before

the trial court. In order to affirm an SVP designation, we, as a

reviewing court, must be able to conclude that the fact-finder

found clear and convincing evidence that the individual is a

sexually violent predator. As with any sufficiency of the evidence

claim, we view all the evidence and [the] reasonable inferences

therefrom in the light most favorable to the Commonwealth. We

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

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Commonwealth has not presented clear and convincing evidence

that each element of the statute has been satisfied.

The standard of proof governing the determination of SVP status,

i.e., “clear and convincing evidence,” has been described as an

“intermediate” test, which is more exacting than a preponderance

of the evidence test, but less exacting than proof beyond a

reasonable doubt.

The clear and convincing standard 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.

Commonwealth v. Morgan, 16 A.3d 1165, 1168 (Pa. Super. 2011) (citation

omitted and formatting altered). In reviewing an SVP determination, this

Court may not re-weigh the factors relied on by the fact-finder. Id. at 1173.

This Court has explained the SVP determination process as follows:

After a person has been convicted of an offense listed in 42 Pa.C.S.

§ 9799.14, the trial court then orders an assessment to be done

by the SOAB to help determine if that person should be classified

as an SVP. An SVP is defined as a person who has been convicted

of a sexually violent offense and who has a mental abnormality or

personality disorder that makes the person likely to engage in

predatory sexually violent offenses. In order to show that the

offender suffers from a mental abnormality or personality

disorder, the evidence must show that the defendant suffers from

a congenital or acquired condition 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. Moreover, there must be a showing that the defendant’s

conduct was predatory. Furthermore, in reaching a

determination, we must examine the driving force behind the

commission of these acts, as well as looking at the offender’s

propensity to reoffend, an opinion about which the

Commonwealth’s expert is required to opine. However, the risk

of reoffending is but one factor to be considered when making an

assessment; it is not an independent element.

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When performing an SVP assessment, a mental health

professional must consider the following 15 factors: whether the

instant offense involved multiple victims; whether the defendant

exceeded the means necessary to achieve the offense; the nature

of the sexual contact with the victim(s); the defendant’s

relationship with the victim(s); the victim(s)’ age(s); whether the

instant offense included a display of unusual cruelty by the

defendant during the commission of the offense; the victim(s)’

mental capacity(ies); the defendant’s prior criminal record;

whether the defendant completed any prior sentence(s); whether

the defendant participated in available programs for sexual

offenders; the defendant’s age; the defendant’s use of illegal

drugs; whether the defendant suffers from a mental illness,

mental disability, or mental abnormality; behavioral

characteristics that contribute to the defendant’s conduct; and any

other factor reasonably related to the defendant’s risk of

reoffending. See 42 Pa.C.S. § 9799.24(b).

Commonwealth v. Hollingshead, 111 A.3d 186, 189-90 (Pa. Super. 2015)

(some citations omitted and formatting altered).

This Court has held that although the SVP statute requires “an inquiry

into the likelihood of reoffense,” it does not require an “assessment of the

likelihood of reoffense,” or a “personal risk assessment.” Morgan, 16 A.3d at

1170, 1173 (quoting Dixon, 907 A.2d at 539 and Commonwealth v. Geiter,

929 A.2d 648, 651 (Pa. Super. 2007)). Further, the risk of reoffense is not

“an ‘independent element’ of the SVP determination, but rather, is but one

factor to be considered when making such an assessment.” Morgan, 16 A.3d

at 1173; see also Dixon, 907 A.2d at 539 (stating that although experts

must offer an opinion as to whether an individual is likely to re-offend, “the

precise manner of meeting this burden is not analyzed in terms of a strict,

three-prong test”).

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Here, the trial court concluded that there was sufficient evidence to

support Appellant’s designation as an SVP. See Trial Ct. Op. at 18. In

reaching that conclusion, the trial court explained:

In this case, an SVP assessment was conducted by a member of

the SOAB, Dr. Robert Stein, pursuant to [Section] 9799.24(b).

Dr. Stein examined the factors enumerated in that sub-section

relevant to the issues of mental abnormality and predatory

behavior.

* * *

Dr. Stein has been a member of the SOAB since 1998 and has

conducted over 2,000 SVP assessments. He estimated that eighty

percent (80%) of those assessments result in his determination

that the individual does not meet the SVP requirements. In this

case, he reviewed all the appropriate materials to conduct his

assessment, including the report from the SOAB investigator, the

criminal complaint and probable cause affidavit, Pennsylvania

State Police reports, ChildLine reports, Dauphin County Children

and Youth reports, and Dauphin County Prison reports. Based

upon his experience, preparation, and demonstration of

competence and expertise during his testimony, we find him to be

a credible witness.

Dr. Stein diagnosed [Appellant] with an “other, specified

paraphilic disorder with a specification of non-consent, a pattern

of non-consenting sexual behavior. Non-consenting because of

the young age of the child and this was not in any way a

consensual or dating type relationship. This was a predatory

relationship.” He explained that “paraphilia” is anything that

deviates from the sexual norm, even where the behavior is legal

or consensual.

However, when a “paraphilic behavior pattern victimizes another

person, now it rises to the level of a paraphilic disorder.” When

that victimization occurs for six (6) months or more, a diagnosis

of paraphilic disorder is appropriate. Such a disorder constitutes

a “mental abnormality.”

Having determined that [Appellant] suffered from a “mental

abnormality,” Dr. Stein next addressed the question of whether

[Appellant] had engaged in “predatory behavior.” He opined that

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[Appellant] “did [display predatory behavior] through multiple

acts of sexual touching. There was the establishment and the

maintenance and promotion of a sexually victimizing relationship.”

The victim was [Appellant’s] stepdaughter, and their relationship

likely was initially established pursuant to this dynamic. However,

the fact that a familial relationship existed does not preclude a

finding of predatory behavior because the statute defines

“predatory” as a relationship formed, in whole or in part, to

facilitate victimization. 42 Pa.C.S. § 9799.12.

At this point, we pause in our analysis of Dr. Stein’s assessment,

to briefly mention aspects of the testimony of [Appellant’s] expert,

Dr. Christopher Lorah, a forensic psychologist who assesses and

treats sexual offenders. We note that Dr. Lorah also believes

[Appellant] suffers from a paraphilic disorder. Dr. Lorah also

agrees with Dr. Stein that [Appellant] engaged in predatory

behavior. In reaching his conclusions that [Appellant] suffers

from a mental abnormality, engaged in predatory behavior, and

satisfies the criteria for an SVP, Dr. Stein examined the statutorily

prescribed factors in § 9799.24(b). He found the following

relevant to the formation of his opinions:

(a) § 9799.24(b)(1)(iii) - The nature of the sexual contact

with the victim. The nature of the contact was

physical touching, which is consistent with sexual

deviance.

(b) § 9799.24(b)(1)(iv) - Relationship of the individual to

the victim. A sexual relationship between a stepfather

and stepdaughter is outside of normal sexual behavior

and consistent with sexual deviance.

(c) § 9799.24(b)(1)(v) - Age of the victim. The victim’s

age, between twelve (12) and fourteen (14), “is a

significant factor in this case”, in that targeting a child

of that age is consistent with sexual deviance. Since

there was no evidence as to whether the victim was

pre-pubescent or post-pubescent, Dr. Stein declined

to diagnose [Appellant] with pedophilia. However, the

absence of that diagnosis does not negate the sexual

deviance of taking advantage of such a young child.

(d) § 9799.24(b)(1)(vii) - The mental capacity of the

victim. The mental capacity of the victim was relevant

to Dr. Stein because some of the offenses occurred

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while the victim was asleep. Taking advantage of

someone without the capacity to defend herself is

consistent with predatory behavior.

(e) § 9799.24(b)(3)(i) - Age of [Appellant]. [Appellant]

was a thirty-seven (37) year old mature adult,

approximately twenty-five (25) years older than the

victim. Dr. Stein stated that “such a substantial [age

difference] is consistent with sexual deviance”, and

pointed out that, while still perhaps demonstrative of

sexual deviance, the same offenses committed by an

eighteen (18) year old upon a twelve (12) year old

would be viewed differently.

(f) § 9799.24(b)(3)(iv) - Behavioral characteristics that

contribute to the individual’s conduct. The overall

pattern is consistent with sustained sexual deviance,

sustained being defined as a period of six months or

more, somewhat arbitrary but that’s the way it’s

generally defined; and the paraphilic disorder, which

is a sexually deviant interest in targeting a 12-year-

old girl and acting on that interest by the demise of a

person through contact offending.

Trial Ct. Op. at 9-13 (record citations omitted, some formatting altered).

Following our review of the record, and viewing the evidence in the light

most favorable to the Commonwealth, we agree with the trial court that there

was sufficient evidence supporting Appellant’s classification as an SVP. See

Morgan, 16 A.3d at 1168.

As noted by the trial court, Dr. Stein considered each of the statutory

factors, including those that were “reasonably related to the risk of reoffense.”

See Hollingshead, 111 A.3d at 189-90. At the SVP hearing, Dr. Stein

testified that Appellant suffered from a paraphilic disorder which “overrode

[Appellant’s] emotional and volitional control” during the two-to-three-year

period in which Appellant sexually abused his minor stepdaughter. N.T. SVP

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Hr’g, 2/11/22, at 40. Dr. Stein also found that Appellant’s conduct was

predatory in nature. Id. at 12, 16-18. Dr. Stein discussed several factors

related to Appellant’s risk of reoffense, including Appellant’s age, diagnosis,

lack of control over his impulses, and potential for rehabilitation. Id. at 20-

26. Ultimately, Dr. Stein concluded that Appellant “meets the criteria for [an

SVP].” Id. at 18.

Although Dr. Stein did not state that there was “high likelihood” that

Appellant would reoffend, such a finding is not required for an SVP

designation. See Morgan, 16 A.3d at 1170, 1173. Further, to the extent

Appellant asks us to revisit our precedent and “require an independent

assessment of likelihood to reoffend” in the SVP context, we have no basis to

do so. See Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006)

(stating that “[i]t is beyond the power of a Superior Court panel to overrule a

prior decision of the Superior Court” (citation omitted)). Accordingly, we

affirm.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/23/2023

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