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HomeMy WebLinkAboutCP-21-CR-2112-2005 COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ALLAN E. BROWN CP-21-CR-2112-2005 IN RE: SEXUALLY VIOLENT PREDATOR DETERMINATION OPINION AND ORDER OF COURT Bayley, J., February 2, 2007:-- On May 23,2006, defendant, Allan E. Brown, entered a plea of guilty to a count of involuntary deviate sexual intercourse, a felony in the first degree.1 The facts set forth in the plea colloquy are: . . . on February 7,2005, Abigail Brown, she was 5 at the time of this disclosure, and being picked up from the Defendant's house-the Defendant is the biological grandfather of the 5-year old, Abigail - the mother was picking up - he was baby sitting - at the time the mother was asking the child, What did you do at grandpa's house today? The 5-year old said they were in the basement and grandpa eats butts. The mother thought that she misheard it and kept asking her, you mean read books, and she kept insisting, no, he eats butts. They inquired more, they called Children and Youth. When Children and Youth interviewed Abigail, they also interviewed Alyssa, the 8-year old sister, who was also watched by the Defendant and his wife at the time. When Children and Youth got the referral, they did an interview of the children; and in the meantime then, if not that same day, the next day, the Defendant came into the Police Department before the crime had even been reported to the police. He asked to talk to a police officer, wanted to confess to molesting his two granddaughters. At that time they took a statement from the Defendant, where the 118 Pa.C.S. S 3123(a)(7). The statute provides: (a) Offense defined.-A person commits a felony of the first degree when the person engages in deviate sexual intercourse with the complainant: (7) who is less than 16 years of age and the person is four or more years older than the complainant and the complainant and person are not married to each other. CP-21-CR-2112-2005 Defendant admitted that in the year 2002 when Alyssa, the 8-year old, was about 5 and a half or so, he would rub himself on top of her clothing, including her genital area, admitted to sticking his hands down her pants and rub her labia. He stated he did this a few times, and pulled her pants down once to allow easier access. Never penetrated vaginally or anally with his hand, never had the child touch him. Then with regard to Abigail, he said that in the fall of 2004 he related that the 5-year old liked to cuddle. He started by kissing her belly and gradually proceeding to kiss her all over. They asked him about kissing or licking her. He said that he also licked her vaginal area and sometimes he was semi-erect but never ejaculated. He said that he had some health problems which would hinder a full erection. He did rub his penis through her legs from behind, but there was no penetration of vagina or anus, and that he never struck his fingers any deeper than her outer vaginal area. He said that he and his wife would baby sit the grandchildren practically every day, but he didn't do this every day. He said it was approximately twice a week since the fall for Abigail Brown, and doesn't molest Alyssa since she was in kindergarten, since she actually started in ki ndergarten. An order was entered for an assessment of whether, under Megan's Law II, 42 Pa.C.S. Sections 9791-9799, defendant is a "sexually violent predator." "Predatory" is defined in Section 9792 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." Section 9792 defines "sexually violent predator" as: A person who has been convicted of a sexually violent offense as set forth in section 9795.1 (relating to registration) and who is determined to be a sexually violent predator under section 9795.4 (relating to assessments) due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses. . .. (Emphasis added.) A "mental abnormality" is defined in Section 9792 as: "A congenital or acquired -2- CP-21-CR-2112-2005 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." Hearings were conducted on December 4, 2006 and January 26, 2007. The Commonwealth has the burden of proving by clear and convincing evidence that defendant is a sexually violent predator. 42 Pa.C.S. S 9795.4(e)(3). Clear and convincing evidence is evidence that is "so clear, direct, weighty, and convincing as to enable [the fact-finder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." Lessner v. Rubinson, 527 Pa. 393 (1991). In Commonwealth v. Krouse, 799 A.2d 835 (Pa. Super. 2002), the Superior Court of Pennsylvania stated: [W]e strongly recommend that trial courts present specific findings of fact regarding the findings necessary for a SVP determination as defined in Section 9792 and the factors specified in Section 9795.4(b) which the legislature has deemed relevant. Section 9795.4(b) of Megan's Law II specifies that an assessment shall include, but not be limited to, the following: (1) Facts of the current offense, including: (i) Whether the offense involved multiple victims. (ii) Whether the individual exceeded the means necessary to achieve the offense. (iii) The nature of the sexual contact with the victim. (iv) Relationship of the individual to the victim. (v) Age of the victim. (vi) Whether the offense included a display of unusual cruelty by the individual during the commission of the crime. (vii) The mental capacity of the victim. (2) Prior offense history, including: -3- CP-21-CR-2112-2005 (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) 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 offenders assessment filed as criteria reasonably related to the risk of reoffense. We will review these criteria. WHETHER THE OFFENSE INVOLVED MULTIPLE VICTIMS The offenses were against two females, Abigail and Alyssa. WHETHER DEFENDANT EXCEEDED THE MEANS NECESSARY TO ACHIEVE THE OFFENSES Defendant did not exceed the means to achieve the offenses. THE NATURE OF THE SEXUAL CONTACT WITH THE VICTIMS During an eleven month period in 2002, defendant rubbed himself on top of Alyssa's clothing, including her genital area, putting his hand inside her pants and rubbing her labia. Between September, 2004 to February, 2005, defendant fondled Abigail, progressing to licking the vaginal area and rubbing his penis through her legs from behind without penetration. RELATIONSHIP OF DEFENDANT TO THE VICTIMS Paternal grandfather. AGE OF THE VICTIMS -4- CP-21-CR-2112-2005 Abigail was born July 1, 2001, and Alyssa was born January 21, 1997. In 2002, Alyssa was age 5. From September, 2004 to February, 2005, Abigail was age 3. WHETHER THE OFFENSES INCLUDED A DISPLAY OF UNUSUAL CRUELTY BY DEFENDANT DURING THE COMMISSION OF THE CRIMES The offenses did not display unusual cruelty by defendant during the commission of the crimes. THE MENTAL CAPACITY OF THE VICTIMS The victims were young children with no indication of abnormal mental capacity. PRIOR CRIMINAL RECORD Defendant has no prior criminal record. WHETHER DEFENDANT HAS COMPLETED ANY PRIOR SENTENCES Defendant has never been sentenced. WHETHER DEFENDANT PARTICIPATED IN AVAILABLE PROGRAMS FOR SEXUAL OFFENDERS There is no evidence that defendant has not participated in such programs. AGE OF DEFENDANT Defendant was born May 15, 1938. He is 68 years old. USE OF ILLEGAL DRUGS BY DEFENDANT There is no evidence of use of illegal drugs by defendant. ANY MENTAL ILLNESS. MENTAL DISABILITY OR MENTAL ABNORMALITY -5- CP-21-CR-2112-2005 Defendant has a mental abnormality of pedophilia. He committed sustained sexual acts with two preschool children over periods of time. -6- CP-21-CR-2112-2005 BEHAVIORAL CHARACTERISTIC OF DEFENDANT THAT CONTRIBUTED TO HIS CONDUCT His mental abnormality of pedophilia. FACTORS THAT ARE SUPPORTED IN A SEXUAL OFFENDERS ASSESSMENT FILED AS CRITERIA REASONABLY RELATED TO THE RISK OF REOFFENSE Jane Yetter, a Board member of the Sexual Offender Assessment Board, who holds a masters degree in clinical psychology and is certified in the State of Virginia as a sexual offender treatment provider,2 offered an opinion within a reasonable degree of professional certainty, that defendant has a mental abnormality of pedophilia. Defendant's conduct was predatory because he utilized his family position as a caretaker for the opportunity to involve his young granddaughters in sexual activity, thus maintaining the relationship in part for purposes of sexual abuse. Yetter's opinion is that defendant meets the legal criteria as a sexually violent predator. DISCUSSION Defendant, age 68, has been married for 42 years. He has sons age 41 and 37. He worked at the Naval Supply Depot in Cumberland County for 24 years, retiring in 1988. He performed part-time employment until 1997. He is in psychiatric treatment for depression. He admits that he is a pedophile and he takes full responsibility for his conduct with Abigail and Alyssa for which he is humiliated and ashamed. He has self- 2 No such certification is available in Pennsylvania. -7- CP-21-CR-2112-2005 reported incidents in the mid-1960's and around 1980 where he had inappropriate contact with young females for which there were no legal consequences. Stanley E. Schneider has a masters degree of education in guidance and counseling. He is a practicing psychologist. He interviewed defendant on two occasions and conducted a life history questionnaire and clinical inventory. Schneider is of the opinion that defendant has a mental disorder of pedophilia. Despite the two prior self-reported incidents by defendant of inappropriate sexual activity with young females in the mid-1960's and around 1980, he concluded that there was no recent established repetitive pattern of offenses because the offenses against Abigail and Alyssa were opportunistic. Given defendant's age of 68, the fact that he will be in prison until at least his early seventies, the actual acts committed and the circumstances under which they were committed without cruelty where he did not exceed the means necessary to do so, his self-reporting of the prior incidents, his admission that he is a pedophile, and his fully acknowledged conduct and humiliation, Schneider is of the opinion that defendant is not a sexually violent predator in that he is not likely to engage in future predatory sexually violent offenses. Considering all of the evidence and weighing the credibility of the witnesses, we are not satisfied that the Commonwealth has proven by clear and convincing evidence that defendant is a sexually violent predator. Accordingly, the following order is entered. ORDER OF COURT -8- CP-21-CR-2112-2005 AND NOW, this day of February, 2007, IT IS ORDERED that defendant is not a sexually violent predator. By the Court, Edgar B. Bayley, J. Jaime Keating, Esquire For the Commonwealth Charles Mackin, Esquire F or Defendant Probation :sal -9- COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ALLAN E. BROWN CP-21-CR-2112-2005 IN RE: SEXUALLY VIOLENT PREDATOR DETERMINATION ORDER OF COURT AND NOW, this day of February, 2007, IT IS ORDERED that defendant is not a sexually violent predator. By the Court, Edgar B. Bayley, J. Jaime Keating, Esquire For the Commonwealth Charles Mackin, Esquire F or Defendant Probation :sal