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HomeMy WebLinkAboutCP-21-CR-0002493-2018 (2) COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : JAVON RICHARD EBERLY : CP-21-CR-2493-2018 IN RE: SEXUALLY VIOLENT PREDATOR DETERMINATION OPINION Masland, J., July 30, 2019:-- I. Facts On January 8, 2019, pursuant to an agreement, Javon Richard Eberly (Defendant) entered a plea of guilty to Count 3 aggravated indecent assault graded as a felony 2. Inasmuch as this plea was in satisfaction of more serious charges at Count 1 (involuntary deviate sexual intercourse with a child) and Count 2 (unlawful contact with a minor), the parties agreed upon an aggravated-range sentence of four to ten years in a state correctional institution. The only discretionary aspect of the sentence was whether the court would grant credit for the Defendant’s six months of inpatient treatment, which we did. As required by the offense, the case was referred to the Pennsylvania Sexual Offenders Assessment Board (Board) for the purposes of an assessment as to whether the Defendant should be classified as a sexually violent predator. The assessment was assigned to board member Robert M. Stein, Ph.D., and based on that assessment, the Board submitted an affirmative response regarding the Defendant. As a result, the Commonwealth filed a praecipe requesting a hearing pursuant to 42 Pa.C.S. § 9799.58. A hearing was held on July 24, 2019 at which Dr. Stein was qualified as an expert in the field of sexual offender treatment classification and recidivism. In addition, the court CP-21-CR-2493-2018 heard from Wilmer Martin, the Defendant’s lay counselor at Whispering Hope regarding the Defendant’s inpatient treatment from October 2018 through April 2019. At the conclusion of the hearing, we found that the Commonwealth had proven by clear and convincing evidence that the Defendant is a sexually violent predator. This opinion is written in support of that finding and the order of court we entered on July 24, 2019. 1 II. Statement of Law Pursuant to 42 Pa.C.S. § 9799.58, a person convicted of a sexually violent offense and found to be a sexually violent predator due to a mental abnormality disorder, is subject to lifetime registration requirements. A “predatory” act is defined in Section 9799.12 of the Judicial Code 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.” The statute defines a “sexually violent predator” as, \[A\] person who has been convicted of a sexually violent offense and who is determined to be a sexually violent predator under section 9799.58 (relating to assessments) due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses or who has ever been determined by a court to have a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually 1 To say that the law regarding sexually violent predators is unsettled is an understatement. As the Superior Court knows, on July 31, 2018 our Supreme Court granted allocatur regarding Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017), appeal granted, 190 A.3d 581 (Pa. 2018), in which the Superior Court found 42 Pa.C.S. § 9799.24(e)(3) to be unconstitutional. In short, the court found that a judicial finding of clear and convincing evidence was not enough and allowed that the General Assembly should enact some rehabilitative legislation. The General Assembly did just that on February 21, 2018 with Act 29. Defendant noted that the language in Section 9799.58 is essentially the same as the language declared unconstitutional and argued that we should not proceed. Rather than sentence the Defendant and be told later that we should have addressed the issue, we decided to make that determination now and, if we are wrong, the Superior Court can simply vacate our order. Therefore, without further ado we will state the law as we find it to be today. -2- CP-21-CR-2493-2018 violent offenses under a former sexual offender registration law of this Commonwealth. 42 Pa.C.S. § 9799.53. The Board is required to provide the assessment to the District Attorney within 90 days of the order. 42 Pa.C.S. § 9799.58(d). The Commonwealth then bears the burden of establishing that the Defendant is a sexually violent predator by clear and convincing evidence. 42 Pa.C.S. § 9799.58(e)(3). Thereafter, the court determines whether the individual is a sexually violent predator. 42 Pa.C.S. § 9799.58(e)(4). Clear and convincing evidence is evidence that is “so clear, direct, weighty, and convincing as to enable \[the factfinder\] to come to a clear conviction, without hesitance, of the truth of the precise facts in issue.” In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). In Commonwealth v. Haughwout, our Superior Court stated: We strongly recommend that the trial courts present specific findings of fact regarding the findings necessary for a SVP determination as defined in \[42 Pa.C.S. § 9799.2\] and the factors specified in Section \[9799.4(b)\] which the legislature has deemed relevant. Commonwealth v. Haughwout, 816 A.2d 247, 251 (Pa. Super. 2003) (statutory citation altered). In Section 9799.58(b) of the Judicial Code, the relevant factors to be considered by the Board in its assessment include, but are not 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. -3- CP-21-CR-2493-2018 (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 of the individual. (ii) Use of illegal drugs by the individual. (iii) Any mental illness, mental disability of 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 re-offense. Section 9799.58(b) is not “a mere checklist where one simply totals and compares the absence of designated factors.” Commonwealth v. Meals, 912 A.2d 213, 221 (Pa. 2006). “\[T\]he presence or absence of certain factors may simply suggest that the presence, or absence, of one or more particular types of abnormalities.” Id. III. Application of Law to Facts Under the authority provided in Section 9799.58(e), the court will now review the aforesaid factors to determine whether Defendant is a sexually violent predator based on the findings in the Board’s assessment. With regard to the relevant factors which must be considered, the court makes the following findings, which were made by Dr. Stein as well. -4- CP-21-CR-2493-2018 (1)(i) – Whether the offense involved multiple victims. 2 The offense involved a single victim, which suggests lesser risk taking. (1)(ii) – Whether the individual exceeded the means necessary to achieve the offense. The Defendant did not exceed the means necessary to gain compliance from the victim. (1)(iii) – The nature of the sexual contact with the victim. The sexual contact with the victim involved non-penetrative and penetrative sexual touching, including oral contact. (1)(iv) – The relationship of the individual to the victim. The victim was an adopted sister. (1)(v) – Age of the victim. The victim was nine years old, which is consistent with pedophilic interest. (1)(vi) – Whether the offense included a display of unusual cruelty by the individual during the commission of the crime. There was no indication of unusual cruelty. (1)(vii) – The mental capacity of the victim. Dr. Stein presumed the victim was of normal mental capacity. However, the other self-reported molestations by Defendant occurred with a child with Down Syndrome and children as young as age 2-3, who would have been unable to defend themselves. This is consistent with predatory behavior. 2 We cannot ignore the fact that the Defendant self-reported multiple victims. Without minimizing the harm done to them, like Dr. Stein, we find the acts with the victim in this case to be sufficient for our determination. -5- CP-21-CR-2493-2018 (2) – Prior offense history. None. (3)(i) – Age of the individual. Mr. Eberly was age 18 and was substantially older than the 9-year-old victim, which is consistent with pedophilic interest. (3)(ii) – Use of illegal drugs by the individual. There was no report of use of illegal drugs. (3)(iii) – Any mental illness, mental disability or mental abnormality. There was no reported mental health history. (3)(iv) – Behavioral characteristics that contributed to the individual’s conduct. The Defendant’s self-report indicated sexual misconduct starting at a very young age and continuing to his adult years, which is consistent with chronic sexual deviance and a pedophilic disorder. (4) – Factors that are supported in a sexual offenders assessment field as criteria reasonably related to the risk of re-offense. Dr. Stein noted that the Defendant is under 35 years old, which is associated with an increased risk that he would re-offend. We are satisfied that Dr. Stein relied upon the type of information commonly used by experts in rendering similar assessments, as contemplated by the Pennsylvania Rules of Evidence. And, “an expert witness’s opinion, when rendered with a reasonable degree of professional certainty, is itself evidence,” Commonwealth v. Fuentes, 991 A.2d 9335, 944 (Pa. Super. 2010) (emphasis in the original). Specifically, we concur with Dr. Stein’s findings: -6- CP-21-CR-2493-2018 1. The individual has a congenital or acquired “condition” which is the impetus of the sexual offending. This matter involved a reported 1.5-2 year period which Mr. Eberly sexually molested his sister who was age 8-9. The acts with his sister, taken alone, provide sufficient evidence for sustained sexual interest in a young child. He meets criteria for Pedophilic Disorder. His self-reported sexual assault of at least 5 other young children provides additional evidence of sustained sexual deviance. There is sufficient evidence for a condition that is the impetus of sexual offending. 2. The individual suffers from a lifetime “condition.” Pedophilic Disorder is not a curable condition. There is sufficient evidence for a lifetime condition. 3. The “condition” over-rode the individual’s emotional/volitional control. Mr. Eberly either could not or would not control persistent urges to sexually assault his young sister. There is sufficient evidence for a condition that over-rode emotional/volitional control. 4. Likelihood of re-offending. With a lengthy period of sexual offending against his sister, there is sufficient evidence for a condition that makes sexual re-offending likely if left unsupervised with young girls. Comm. Ex. 1, at 5, 6. In sum, we are satisfied that the credible opinion of Dr. Stein that the Defendant met the criteria set forth in 42 Pa.C.S. Section 9799.58(b) for a sexually violent predator was not contradicted by expert testimony to the contrary. Indeed, we respect the experienced, but lay, testimony of Wilmer Martin, and we credit the Defendant, his family and his church for attempting to address his condition. Nevertheless, when considered in conjunction with other evidence in this case, Dr. Stine’s testimony was more than sufficient from our perspective as factfinder, to prove by clear and convincing evidence that the Defendant is a sexually violent predator as defined by the legislature. -7- CP-21-CR-2493-2018 Therefore, the court concludes that the Defendant (a) has been convicted of a sexually violent offense as set forth in Section 9799.12 of the Judicial Code; and (b) is likely to engage in predatory sexual violent offenses. By the Court, Albert H. Masland, J. Courtney Hair Larue, Esquire Assistant District Attorney Mark F. Bayley, Esquire For Defendant Public Defender’s Office Probation :sal -8-