The opinion
J-S05036-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL ALLEN DYESS :
:
Appellant : No. 723 WDA 2023
Appeal from the Judgment of Sentence Entered May 17, 2023
In the Court of Common Pleas of Clarion County
Criminal Division at CP-16-CR-0000089-2022
BEFORE: PANELLA, P.J.E., KING, J., and BENDER, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED: March 11, 2024
Michael Allen Dyess (Appellant) appeals from the judgment of sentence
imposed after a jury convicted him of numerous crimes involving his sexual
abuse of a child. In his sole issue, Appellant challenges his designation as a
sexually violent predator (referenced at times as SVP). We affirm.
The trial court summarized the procedural history as follows:
A jury trial was held on November 29-30, 2022, and [Appellant]
was found guilty of ten (10) counts of Indecent Assault [of a
person] less than thirteen (13) [years of age]; ten (10) counts of
Indecent Assault without Consent; two (2) counts of Endangering
Welfare of a Children; and one (1) count of Corruption of a Minor.
The one (1) count of Harassment was nolle prossed following the
conclusion of trial.
Thereafter, [the trial court ordered] an assessment by the Sexual
Offenders Assessment Board [(referenced at times as SOAB),]
and a hearing was held to determine whether [Appellant] should
be classified as a Sexually Violent Predator on April 4, 2023. At
the conclusion of the hearing, this court found [Appellant] to be a
Sexually Violent Predator. On May 17, 2023, [Appellant] was
sentenced to serve an aggregate period of incarceration under the
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supervision of the Pennsylvania Bureau of Corrections for a
minimum of eighty-four (84) months, to a maximum of one
hundred sixty-eight (168) months, followed by three (3) years of
consecutive probation supervision.
[Appellant] filed a Notice of Appeal on June 15, 2023. In
[Appellant]’s Statement of Matters Complained of on Appeal, filed
on July 11, 2023, he raised one (1) claim of error.
Trial Court Opinion (TCO), 8/7/23, at 1-2.
Appellant states that the trial court erred by finding him to be an SVP
“at a hearing held prior to the sentencing of Appellant on charges which
formed the basis of the classification as an SVP against the weight of the
evidence presented.” Appellant’s Brief at 6.
This Court “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.” Commonwealth v.
Hollingshead, 111 A.3d 186, 189 (Pa. Super. 2015) (citation omitted). The
Commonwealth’s burden of proof “has been described as an intermediate test,
falling below the highest level of proof, beyond a reasonable doubt, but above
the preponderance of the evidence standard.” Commonwealth v.
Stephens, 74 A.3d 1034, 1039 (Pa. Super. 2013) (citation omitted).
Evidence will meet this level of proof if it 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 at issue.” Id.
An SVP is “an individual who committed a sexually violent offense” and
“who is determined to be a sexually violent predator . . . due to a mental
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abnormality or personality disorder that makes the individual likely to engage
in predatory sexually violent offenses.” 42 Pa.C.S. § 9799.12.
We recently explained:
The procedure for determining SVP status is statutorily mandated
and well-defined. Under revised Subchapter H of [the Sex
Offender and Registration Act, (]SORNA[)], after a person has
been convicted of an offense listed in [42 Pa.C.S. §] 9799.14, the
trial court orders an assessment by the SOAB. The SOAB must
assess all individuals convicted of sexually violent offenses to
determine whether they should be classified as an SVP. When
assessing whether a particular offender should be classified as an
SVP, the board shall establish standards for evaluations and for
evaluators conducting the assessments.
Commonwealth v. Moore, 307 A.3d 95, 100 (Pa. Super. 2023), citing
Commonwealth v. Aumick, 297 A.3d 770, 777 (Pa. Super. 2023) (en banc).
After a court orders an assessment, “a member of the [SOAB] as
designated by the administrative officer of the board shall conduct an
assessment of the individual to determine if the individual should be classified
as a sexually violent predator.” 42 Pa.C.S. § 9799.58(b). The assessment
shall include, but not be limited to, an examination of 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.
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(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 of the individual.
(ii) Use of illegal drugs by the individual.
(iii) A mental illness, mental disability or mental
abnormality.
(iv) Behavioral characteristics that contribute to the
individual's conduct.
(4) Factors that are supported in a sexual offender assessment
field as criteria reasonably related to the risk of reoffense.
42 Pa.C.S. § 9799.58(b).1
The Commonwealth must prove “that the person’s mental abnormality
makes the person likely to engage in predatory behavior, whether or not the
offense at issue was predatory.” Commonwealth v. Feucht, 955 A.2d 377,
381 (Pa. Super. 2008) (citing Commonwealth v. Fletcher, 947 A.2d 776,
776 (Pa. Super. 2008)). We have explained:
In order for a person to be designated an SVP, the crime
committed in the case under consideration need not have been
____________________________________________
1 The SOAB has 90 days from the date of the individual’s conviction to submit
a written report of its assessment to the district attorney. 42 Pa.C.S. §
9799.58(d). “A hearing to determine whether the individual is a sexually
violent predator shall be scheduled upon praecipe by the district attorney.”
Id. at § 9799.58(e)(1).
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predatory, although it must have been a sexually violent one.
Rather, what is required is that the person’s mental abnormality
makes the person likely to engage in predatory behavior, whether
or not the offense at issue was predatory. Naturally, the facts of
the [underlying] offense are material to the SVP assessment.
Commonwealth v. Feucht, 955 A.2d 377, 381 (Pa. Super. 2008) (citations
omitted). The court must examine “the driving force behind the individual’s
commission of predatory acts, [and] look[] at the offender’s propensity to re-
offend, an opinion about which the Commonwealth’s expert is required to
opine.” Stephens, 74 A.3d at 1038-39. The “risk of re-offending is but one
factor to be considered when making an assessment; it is not an ‘independent
element.’” Id. at 1039 (citation omitted).
In this case, Appellant’s assessment was conducted by SOAB member
Brenda Manno. Ms. Manno is a licensed clinical social worker who has been a
member of the SOAB since 1998. N.T., 4/4/23, at 3-4. Ms. Manno testified
that as of March 8, 2023, she had completed 1,760 SVP assessments. Id. at
4. The trial court qualified Ms. Manno as an expert in sexual offender
assessments, and admitted her report (Report) into evidence without
objection. Id. at 4, 9 (admitting Report as Commonwealth Exhibit 1). Ms.
Manno was the only witness at Appellant’s SVP hearing.
Appellant does not dispute that he committed a sexually violent offense.
However, he claims Ms. Manno’s assessment was “arbitrary and capricious.”
Appellant’s Brief at 9. Appellant states:
With the presence of statutory factors not being determinative of
SVP status, and no other criteria discussed for the levy of an SVP
determination, the inference of the determination of SVP status
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[a]s arbitrary is a reasonable one. Arbitrariness is antithetical to
a clear and convincing standard of proof.
Id. at 14.
Appellant does not cite any case law to support his argument. See
Pa.R.A.P. 2119(a) (requiring that appellate briefs contain “discussion and
citation of authorities as are deemed pertinent”). “When an appellant cites no
authority supporting an argument, this Court is inclined to believe there is
none.” Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 781 (Pa.
Super. 2015) (en banc).
To the contrary, the trial court and Commonwealth argue that
Appellant’s SVP designation is supported by this Court’s decision in Feucht,
supra. See TCO at 3; Commonwealth’s Brief at 1 (citing TCO, “particularly
the reliance on Commonwealth v. Feucht”). In Feucht, we explained:
[W]ith regard to the various assessment factors listed in Section
[9799.58(b)], there is no statutory requirement that all of them
or any particular number of them be present or absent in order to
support an SVP designation. The factors are not a checklist with
each one weighing in some necessary fashion for or against SVP
designation. 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.
Thus, while the Board is to examine all the factors . . . the
Commonwealth does not have to show that any certain factor is
present or absent in a particular case. Rather, the question for
the SVP court is whether the Commonwealth’s evidence, including
the Board’s assessment, shows that the person convicted of a
sexually violent offense has a mental abnormality or disorder
making that person likely to engage in predatory sexually violent
offenses.
Feucht, 955 A.2d at 381.
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Despite acknowledging “the presence of statutory factors not being
determinative of SVP status,” Appellant emphasizes the absence of “many of
the factors required to be considered by statute.” Appellant’s Brief at 11, 14.
He states that his “offense[s] involved one victim”; he “did not display unusual
cruelty in the course of his offense[s]”; he does not have a prior criminal
history and has not completed a prior sentence; he “has not been provided
the opportunity to learn to curb his criminal behavior by experiencing
consequences or punishments”; information regarding illegal drug use and
mental health “was not able to be obtained”; and because Appellant “has no
prior charges or convictions for sexual offenses,” there are no factors
“reasonably related to the risk of reoffense.” Id. at 11-12 (alluding to Section
9799.58(b)(1)(i),(vi); (2)(i),(ii),(iii); (3)(ii),(iii); and (4)). Appellant also
states that two of the established factors, the nature of the sexual contact and
the age of the victim, “were established by the existence of the crime.” Id.
at 12 (alluding to Section 9799.58(b)(1)(iii),(v)).
In addition, Appellant criticizes Ms. Manno’s report as “not just opaque,
[but] internally inconsistent.” Id. at 13. He stresses that he declined to
participate in the assessment, and points to the third paragraph on page 2 of
the Report which begins with the sentence, “On December 28, 2021, Michael
Dyess was interviewed.” Id. at 13-14 (quoting Report at 2).
Appellant disregards the context of the quote. The first page of the
Report indicates that Ms. Manno reviewed various documents and records,
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including the “Police Report/Criminal Complaint/Case Disposition.” Report at
1. The Report states:
INFORMED CONSENT:
. . . The Board received notice on December 14, 2022, from
[Appellant’s attorney] indicating that [Appellant] would not be
participating in the interview process. The investigation and
assessment were completed without [Appellant] participating in
the interview.
DESCRIPTION OF INSTANT OFFENSE:
The following information was taken from the police
criminal complaint filed by Trooper Joshua Bauer of the
Pennsylvania State Police. . . .
Id. (emphasis added).
The sentence Appellant quotes about being interviewed refers to
Trooper Bauer’s interview of Appellant as stated in the criminal complaint and
recited in the Report. See Report at 2 (restating information from Trooper
Bauer’s interview of the victim’s mother as well as Appellant).
Appellant also mischaracterizes statements concerning his mental
health. Appellant quotes a sentence in the Report which states: “Information
regarding prior mental health diagnosis or treatment was not able to be
obtained during the course of the investigation.” Appellant’s Brief at 14
(quoting Report at 4). He complains that the Report “then goes on to establish
a mental abnormality 3 paragraphs later.” Id. However, Appellant disregards
the distinction between the statement that his prior mental health information
was unavailable to Ms. Manno, and Ms. Manno’s contemporaneous and
mandated conclusion that Appellant suffers from a mental abnormality. See
Report at 4 (discussing criteria for a mental abnormality and concluding
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Appellant “meets the diagnostic criteria for Pedophilic Disorder as defined in
the DSM-5”).
Ms. Manno concluded:
[Appellant] meets the diagnostic criteria for a Paraphilic Disorder,
specifically Pedophilic Disorder, which is considered a congenital
or acquired condition.
. . . [A] Paraphilic Disorder is a lifetime disorder that follows a
chronic course.
. . . [Appellant] has engaged in the sexual offending of the victim
on numerous occasions over approximately a span of three years.
He instructed the victim not to disclose the abuse.
. . . [Appellant’s] pathway to offending is his mental abnormality.
***
Based upon all of the available information, it is this Board
Member’s professional opinion within a reasonable degree of
professional certainty that [Appellant] does suffer from a mental
abnormality or personality disorder as defined in Pennsylvania
law. . . .
ISSUE OF PREDATORY BEHAVIOR:
The law defines predatory as, “An 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.” [Appellant] sexually victimized his
[victim]. He used his access and normative parenting situations
to engage in the sexual offending of the child for an extended
period of time. His behavior is considered predatory in nature
based on the definition in the statute.
Id. at 4-5 (bold in original).
At the conclusion of the SVP hearing, the trial court stated:
I think Ms. Manno has fully explained why she came to the
conclusion that she did. I think that her recitation of the
information upon which she relied is consistent with the testimony
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that was offered at [Appellant’s] trial which I presided over. And
for that reason, taking into consideration the facts that were
established at trial and Ms. Manno’s professional opinion that’s
contained within her report, I do find that [Appellant] is a Sexually
Violent Predator and should be classified as such.
N.T., 4/4/23, at 18.
The court in its opinion reasoned:
At the hearing, Brenda Manno, a member of the Sexual Offenders
Assessment Board, testified that [Appellant] met the criteria of a
sexually violent predator and offered details of her report. The
Commonwealth offered into evidence the Sexually Violent
Predator Assessment completed by Ms. Manno in its entirety, upon
which this court relied to make its determination. [Appellant] did
not offer any evidence at the hearing but argued that despite the
sexual behavior occurring over a period of three years[,] the jury
did not find that [Appellant] engaged in a course of conduct for
the charge of Indecent Assault of a Child. Pursuant to 42 Pa.C.S.[]
§ 9799.58(b), Ms. Manno considered fourteen factors in her
assessment and concluded that [Appellant] met the criteria for a
sexually violent predator under Pennsylvania law.
***
This court accepted the assessment conducted by Ms. Manno as
reliable and compelling. [Appellant] was convicted of ten (10)
counts of Indecent Assault of a Child and ten (10) counts of
Indecent Assault - Lack of Consent, which occurred over a period
of three years and was considered by Ms. Manno in her report.
Ms. Manno testified that her opinion would not change even if the
jury had found [Appellant] guilty of a course of conduct. The fact
that the jury failed to find that [Appellant] engaged in a course of
conduct relates to the grading of the offense, which was resolved
at the time of trial. Therefore, the court did not abuse its
discretion in determining that the Commonwealth proved by clear
and convincing evidence that [Appellant] was a sexually violent
predator.
TCO at 3-4.
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Our review of the record and law confirms that the Commonwealth
presented clear and convincing evidence to support Appellant’s designation as
an SVP. Appellant’s claim to the contrary does not merit relief.
Judgment of sentence affirmed.
DATE: 03/11/2024
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