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HomeMy WebLinkAboutCP-21-CR-0023-2003 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : 02-1627 CRIMINAL : CHARGE: (2) SEXUAL ABUSE OF CHILDREN : AFFIANT: DET. KRISTIN MERTZ : OTN: H460233-4 : : 02-2035 CRIMINAL : CHARGE: (2) CORRUPTION OF MINORS : AFFIANT: DET. KRISTIN MERTZ : OTN: H460242-6 : : 03-0023 CRIMINAL : CHARGE: (3) CORRUPTION OF MINORS : AFFIANT: DET. KRISTIN MERTZ KENNETH CURNUTTE, JR. : OTN: H460319-6 IN RE: SEXUALLY VIOLENT PREDATOR DETERMINATION HEARING BEFORE HESS, J. OPINION AND ORDER In this case, the Commonwealth seeks a designation of the defendant as a sexually violent predator. The Judicial Code defines a sexually violent predator as a person who has been convicted of a sexually violent offense as defined in 42 Pa.C.S.A. 9795 and who displays a “mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.” 42 Pa.C.S.A. 9792. The burden of establishing that the defendant is a sexually violent predator is on the Commonwealth. S.V.P. status must be established by clear and convincing evidence. Normally the court must hear from an expert as to the presence of the defect or disorder. See Commonwealth v. Aby, 841 A.2d 562 (Pa.Super. 2004). On January 22, 2003, the defendant pled guilty to a count of sexual abuse of children and two counts of corruption of minors. The charge of sexual abuse of children is a sexually violent offense. Following an assessment by the Sexual Offenders Board and a hearing, we entered an CP-21-CR-1627-2002 CP-21-CR-2035-2002 CP-21-CR-0023-2003 order finding that the defendant was a sexually violent predator and therefore subject to lifetime registration pursuant to 42 Pa.C.S.A. 9795. Prior to hearing, the defendant had made an application to the court seeking the appointment of a psychologist at court expense. His motion was denied. Our determination on the issue of the defendant’s entitlement to a court-appointed psychologist was eventually reversed by the Superior Court and the matter was remanded to us. Since that time, the Public Defender’s Office has assumed representation in this case and the defendant retained the services of Dr. Stanley Schneider. A hearing was held on October 19, 2005, and counsel were given some time in which to file memoranda. As we have noted, only the one count of sexual abuse of children is a sexually violent offense. The guilty pleas with respect to the corruption charges, however, were fact specific and 1 were used by the Commonwealth’s expert in making her evaluation. We do not agree with the defense argument in the matter sub judice that, because corruption of minors is not in and of itself a sexually violent offense, the Commonwealth’s expert is required to ignore the facts surrounding those charges. The factual scenarios are as follows. With respect to the charge of sexual abuse of children, the defendant admitted that he set up a camera in the family bathroom and videotaped his daughter’s female friend taking a shower and otherwise using the bathroom facilities. The victim was not aware that she was being videotaped. In connection with one count of corruption of minors, Curnutte talked to a seventeen-year-old young woman about having sex with his son. During this encounter, he touched the victim’s genitals and then told the victim not to say anything. He encouraged her and his son to have intercourse by putting them in a room, telling them to take off their clothing, 1 As noted by Judge Bayley, of this court, in Com. v. Brian L. Wright, 54 Cumb. 2005, the “adjudication of whether defendant is a ‘sexually violent predator’ is not a trial within a trial as to the defendant’s wrongdoing.” Rather, the adjudication must be based on the facts of the current offense as gleaned from the guilty plea colloquy. 2 CP-21-CR-1627-2002 CP-21-CR-2035-2002 CP-21-CR-0023-2003 and by giving his son a pornographic movie to show. In the remaining corruption of minors charge, the defendant suggested to a sixteen-year-old female friend of his son that she could make money by posing nude for pictures. Eventually, the girl did pose for pictures. In one of the pictures, the defendant’s left hand can be seen touching the child’s genitals. The Commonwealth offered the testimony of Nancy W. Einsel, M.S. Ms. Einsel has a Master’s Degree in counseling and has earned a certification in the treatment and assessment of 2 sex offenders from the Commonwealth of Virginia. She is a member of the Association for the Treatment of Sexual Abusers. In order to become a clinical member of that organization, she was required to have at least 2,000 hours of direct contact with sexual offenders. She is also, of course, a member of the Pennsylvania Sexual Offenders Assessment Board. She concluded that Mr. Curnutte suffers from a mental disorder known as Paraphilia which involves a sexual attraction to post-pubescent children. She went on to opine that the behavior of the defendant, as acknowledged in his guilty plea, was predatory in nature. She therefore concluded that the defendant is a sexually violent predator. Testifying on behalf of the defendant, Dr. Schneider noted that these unlawful acts occurred at a time of great stress in Mr. Curnutte’s life. While Dr. Schneider agreed with Ms. Einsel’s diagnosis, he opined that because certain stressors were now gone from Mr. Curnutte’s life, it was unlikely that these acts would be repeated. The defendant thus frames the issue as is likely being whether Mr. Curnutte to engage in predatory behavior in the future. We believe that there is a subtle but critical distinction between the framing of the issue by the defendant and Pennsylvania’s statutory scheme. We agree with the Commonwealth that they need not prove by clear and convincing evidence that the defendant will or is likely to engage in predatory sexual 2 She testified that Pennsylvania does not have such a certification. 3 CP-21-CR-1627-2002 CP-21-CR-2035-2002 CP-21-CR-0023-2003 behavior in the future but rather must prove that the defendant suffers from a mental abnormality that makeshim likely or personality disorder to engage in future predatory sexually violent offenses. As a member of the assessment board, Ms. Einsel understood the statutory mandate to involve a determination whether “there is a personality disorder or a mental abnormality that would make the individual prone to commit future predatory or sexually violent offenses. In addition to that, there needs to be predatory behavior in the instant offense that has been shown.” N.T. 20. Both psychologists agree on the diagnosis and so that aspect has certainly been proven by clear and convincing evidence. Such was not the case in Com. v. Plucinski, 868 A.2d 20 (Pa.Super. 2005), a case relied upon by the defendant. In that case, the defendant appealed from a determination classifying him as a sexually violent predator. The defendant began having marital difficulties. He then commenced a sexual relationship with his fourteen-year-old stepdaughter. The assaults involved sexual touching but no acts of vaginal intercourse. The Commonwealth’s expert witness testified that Plucinski suffered from “hebephilia” which he characterizes as a sub-category of “paraphilia” not included in the DSM-4. The defendant’s expert testified that she was unfamiliar with the disorder “hebephilia” for diagnostic purposes. She opined that Plucinski’s conduct was triggered by stress in his marriage and did not support the labeling of the defendant as a sexually violent predator. Notwithstanding, the trial court determined that Plucinski was a sexually violent predator. The Superior Court concluded that the trial court had erred and that the Commonwealth had not met its burden in demonstrating the existence of a personality disorder which made the defendant likely to engage in predatory sexually violent behavior. 4 CP-21-CR-1627-2002 CP-21-CR-2035-2002 CP-21-CR-0023-2003 In this case, unlike Plucinski, there is agreement among the experts as to the nature of the mental disorder suffered by the defendant. The defendant makes the point, however, that his offending was situational: that is, triggered by stress. The Commonwealth, while agreeing that stress may be a trigger, properly observes that a potential for stress always exists and that there is, therefore, a risk that the defendant’s conduct will reoccur because of the defendant’s mental predisposition. This is simply another way of saying that the defendant suffers from a mental condition which makes it likely that he will engage in sexually predatory behavior in the future. The so-called Megan’s Law was designed precisely for the purpose of monitoring such persons. ORDER AND NOW, this 23rd day of February, 2006, the court determines that the defendant is a sexually violent predator. The defendant is ordered and directed to appear at the offices of his probation officer, Gregory Miller, on Wednesday, March 15, 2006, for the purpose of receiving instruction concerning his duties under Subchapter H (registration of sexual offenders) of Title 42 of the Pennsylvania Statutes and to read and sign a form stating that the duty to register under said subchapter has been explained. See 42 Pa.C.S.A. 9795.3(6). BY THE COURT, _______________________________ Kevin A. Hess, J. Michelle Sibert, Esquire Sr. Assistant District Attorney Linda Hollinger, Esquire Assistant Public Defender :rlm 5 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : 02-1627 CRIMINAL : CHARGE: (2) SEXUAL ABUSE OF CHILDREN : AFFIANT: DET. KRISTIN MERTZ : OTN: H460233-4 : : 02-2035 CRIMINAL : CHARGE: (2) CORRUPTION OF MINORS : AFFIANT: DET. KRISTIN MERTZ : OTN: H460242-6 : : 03-0023 CRIMINAL : CHARGE: (3) CORRUPTION OF MINORS : AFFIANT: DET. KRISTIN MERTZ KENNETH CURNUTTE, JR. : OTN: H460319-6 IN RE: SEXUALLY VIOLENT PREDATOR DETERMINATION HEARING BEFORE HESS, J. ORDER rd AND NOW, this 23 day of February, 2006, the court determines that the defendant is a sexually violent predator. The defendant is ordered and directed to appear at the offices of his probation officer, Gregory Miller, on Wednesday, March 15, 2006, for the purpose of receiving instruction concerning his duties under Subchapter H (registration of sexual offenders) of Title 42 of the Pennsylvania Statutes and to read and sign a form stating that the duty to register under said subchapter has been explained. See 42 Pa.C.S.A. 9795.3(6). BY THE COURT, _______________________________ Kevin A. Hess, J. Michelle Sibert, Esquire Sr. Assistant District Attorney Linda Hollinger, Esquire Assistant Public Defender :rlm