Loading...
HomeMy WebLinkAbout01-2019 CriminalCOMMONWEALTH GORDON NEAL DIEM IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-2019 CRIMINAL TERM SEXUAL VIOLENT PREDATOR DETERMINATION OPINION AND ORDER OF COURT Bayley, J., February 21, 2003:-- On September 18, 2002, defendant, Gordon Neal Diem, age 55, was convicted by a jury of twelve offenses: criminal attempt and criminal conspiracy to the corruption of a minor, a seventeen-year-old girl, and criminal attempt and criminal conspiracy to indecent assault, aggravated indecent assault, statutory sexual assault, involuntary deviate sexual intercourse, and corruption of a minor, with a fictitious fifteen-year-old girl, Jessica. The evidence at trial was that "A," a seventeen-year-old girl, used her computer to chat with people under a screen name, Deadly Siren. In July, 2001, she was contacted on her computer by defendant under his screen name, Pa Master 1946. When defendant's inquiries turned to sex, "A" told her father. "A" then made a phone call to a number that defendant provided, and talked to him and to Pamela Garrett. Defendant asked "A" if she was interested in a threesome. She told defendant that she was seventeen, and he said that was "no problem." "A" and her father then contacted the police. On August 26th, the police, using a computer, introduced a fictitious fifteen- year-old girl, Jessica, into chats between defendant and "A." The police did so for the 01-2019 CRIMINAL TERM purpose of determining if defendant would use the Internet to entice an underage girl into illegal sexual activity. When told by a detective, playing the part of Jessica, that she was fifteen, defendant said "we can work around it." After a series of chats over a period of six weeks in which defendant stated that he was interested in establishing a relationship with "A" and Jessica in which they could become part of his dominant/submissive household, with some bi-sexuality, play a little BDSM (bondage, discipline, sadism and masochism), and have babies together, a meeting was set for September 22®, at the Harvon Motel in Carlisle. Defendant arrived at the Harvon, rented a room and set it up with alcohol, sex paraphernalia and bondage devices. He added Pamela Garrett to the scene, who he testified at trial was his "collared life partner--sex slave." Garrett was wearing a red satin corseted outfit with a restraint collar around her neck.1 Defendant phoned "A" and told her that he was in the room at the Harvon. Defendant went to the parking lot to watch for "A" and Jessica to arrive. The police arrested defendant in the lot, and then entered the motel room and arrested Garrett.2 Following his convictions, a pre-sentence investigation was ordered. On 1 The police later had the collar removed with a bolt cutter. : Garrett pled guilty to conspiracy to corrupt the morals of "A." Defendant, who was a Lt. Colonel in the Army reserve, and has bachelor, masters, and doctor of arts degrees, testified at trial that he was studying the bizarre conduct of subcultures. When he set up the room in the Harvon Motel he was not expecting "A" and Jessica to arrive. Rather, he was expecting to meet a pedophile madame engaged in the introduction of children into sexual slavery, a vice he has sought to expose. -2- 01-2019 CRIMINAL TERM February 4, 2003, a hearing was conducted on a petition of the Commonwealth to have defendant declared a sexually violent predator under Pennsylvania's Megan's Law II. 42 Pa.C.S. §§ 9791-9799. Section 9792 of Megan's Law II 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.) "Predatory" is defined in Section 9792 as: "An act directed at a stranger or at a person with whom a relationship has been established or promoted for the primary purpose of victimization.''3 As mandated by Megan's Law II, a sexual offender's assessment was conducted by the Sexual Offenders Assessment Board of the Commonwealth of Pennsylvania. Defendant refused to participate in the assessment. Acting for the Assessment Board, a psychologist, Robert Stein Ph.D., prepared a report and testified that in his opinion defendant is a sexually violent predator. Defendant retained a psychologist, Janet Schaeffer, Ph.D., who conducted her assessment. Dr. Schaeffer prepared a report and 3 Corruption of a minor is not a sexually violent offense as defined in Megan's Law II. Because defendant has been convicted of attempting to commit four sexually violent offenses with the fictitious Jessica, age 15, he is subject to a mandatory ten-year registration with the Pennsylvania State Police. 42 Pa.C.S. Section 9795.1(a)(2). If he is found to be a sexually violent predator, the consequence is that he will be subject to lifetime registration with the Pennsylvania State Police. 42 Pa.C.S. § 9795.1(b)(3). -3- 01-2019 CRIMINAL TERM testified that in her opinion defendant is not a sexually violent predator. The Commonwealth has the burden of proving by clear and convincing evidence that defendant is a sexually violent predator. 42 Pa.C.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 of the 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) 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: (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: -4- 01-2019 CRIMINAL TERM (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. Although not all inclusive, we will review these criteria seriatim. WHETHER THE OFFENSE INVOLVED MULTIPLE VICTIMS No. While defendant was convicted of corrupting the morals of "A," only the four attempted sexually violent offenses with the fictitious fifteen-year-old Jessica constitute crimes which can trigger sexually violent predator status. WHETHER DEFENDANT EXCEEDED THE MEANS NECESSARY TO ACHIEVE THE OFFENSES Probably. While equipping the room at the Harvon Motel with alcohol, sexual paraphernalia, bondage devices and Pamela Garrett might be considered as overkill rather than enticement, defendant had already told the girls on the Internet that he wanted them to become part of his dominant/submissive household, with some bi- sexuality, play a little BDSM, and have babies together. THE NATURE OF THE SEXUAL CONTACT WITH THE VICTIM Since Jessica was fictitious there was no sexual contact. The jury concluded that defendant attempted to have the following illegal sexual contact with Jessica: indecent assault, aggravated indecent assault, statutory sexual assault, and involuntary deviate sexual intercourse, and that he did so in conspiracy with Pamela Garrett. -5- 01-2019 CRIMINAL TERM RELATIONSHIP OF DEFENDANT TO THE VICTIM None, AGE OF THE VICTIM Fifteen years old, WHETHER THE OFFENSES INCLUDED A DISPLAY OF UNUSUAL CRUELTY BY DEFENDANT DURING THE COMMISSION OF THE CRIMES While defendant had the equipment to inflict pain on Jessica, there is no proof that he intended to display unusual cruelty while having illegal sexual contact with her, THE MENTAL CAPACITY OF THE VICTIM Jessica was portrayed as a fifteen-year-old with a great amount of sexual curiosity, PRIOR CRIMINAL RECORD Defendant has no criminal record, WHETHER DEFENDANT HAS COMPLETED ANY PRIOR SENTENCES Having no criminal record defendant has never been sentenced for the commission of a crime. WHETHER DEFENDANT PARTICIPATED IN AVAILABLE PROGRAMS FOR SEXUAL OFFENDERS Defendant has not participated in such programs. He has continued to deny to Dr. Schaeffer that he intended to have sex with "A" and Jessica. He told her that he has a negative view toward intervention. However, he also told her that, having been -6- 01-2019 CRIMINAL TERM convicted, he should be punished. AGE OF DEFENDANT Defendant was 55 years old when he committed the crimes for which he was convicted. He is now 56 years old. USE OF ILLEGAL DRUGS BY DEFENDANT There is no evidence of any illegal use of drugs by defendant. Defendant denied to Dr. Schaeffer any history of drug abuse or dependence. ANY MENTAL ILLNESS, MENTAL DISABILITY OR MENTAL ABNORMALITY Both Dr. Stein and Dr. Schaeffer agree that defendant meets the diagnostic criteria for Paraphilia Not Otherwise Specified. Paraphilia is aberrant sexual activity, and includes practices which are socially prohibited, socially unacceptable, or biologically undesirable. Both psychologists agree that defendant does not meet the diagnostic criteria for pedophilia which is a morbid interest in the sexual perversion of children. Dr. Stein testified that although defendant's sexual predilections deviate from the norm, his interest in BDSM and dominance/submission is not a mental abnormality.4 Dr. Schaeffer administered a MMPI-2 to defendant on January 24, 2003. He produced a valid profile. Dr. Stein agrees that defendant does not have a personality disorder. Nor is participating in such activities among competent and consenting people of age crime. -7- 01-2019 CRIMINAL TERM BEHAVIORAL CHARACTERISTIC OF DEFENDANT THAT CONTRIBUTED TO HIS CONDUCT Having already acquired a "collared life partner--sex slave," defendant's infatuation with a dominant/submissive household in which he would produce babies with bi-sexual women contributed to his committing crimes when he attempted and conspired with Pamela Garrett to include a fifteen-year-old girl in his sexual activities? FACTORS THAT ARE SUPPORTED IN A SEXUAL OFFENDERS ASSESSMENT FILED AS CRITERIA REASONABLY RELATED TO THE RISK OF REOFFENSE Defendant, who has no criminal record, has not in the past shown a preoccupation with a sexual preference for children. His grooming of Jessica was for a short time period. His Paraphilia NOS disorder does not necessarily predispose him toward the commission of illegal sexual acts with children. Virtually all the criteria in Section 9795.4(b) indicate a decreased risk of reoffense for defendant. His history of aberrant behavior is with women who have lawfully consented to such conduct. Dr. Schaeffer, who has considerable experience assessing sexual offenders in the state of Washington, administered three risk assessment instruments to defendant which are widely utilized in that state: the Psychopathy Checklist--Revised (PCL-R), Violence Risk Assessment Guide (V-RAG), and Sexually Violence Risk-20 (SVR-20). While there is always a chance that a person with the intelligence of defendant can ~ Unlike Jessica, who was portrayed as being 15, "A," who was 17, could legally consent to having sex with defendant. -8- 01-2019 CRIMINAL TERM manipulate such tests, Dr. Schaeffer was of the opinion that the results were valid and showed that defendant is a Iow risk for reoffense. The Commonwealth's strongest argument as to the risk of reoffense is that the Internet, which defendant used to commit his crimes, is a relatively easy tool to groom victims, and that it is difficult to detect such activity. CONCLUSION After careful consideration of the above criteria and all of the evidence, we are satisfied that the Commonwealth has not proved by clear and convincing evidence that defendant is a sexually violent predator who, due to a mental abnormality or personality disorder, is likely to engage in predatory sexually violent offenses. ORDER OF COURT AND NOW, this a sexually violent predator. day of February, 2003, we find that defendant is not By the Court, Edgar B. Bayley, J. -9- 01-2019 CRIMINAL TERM David Freed, Esquire For the Commonwealth Paul Orr, Esquire For Defendant Probation :sal -10-