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HomeMy WebLinkAbout01-1882 CriminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BILLY LEE REILY NO. 01-1882 CRIMINAL TERM IN RE: COMMONWEALTH'S REQUEST FOR DETERMINATION OF SEXUALLY VIOLENT PREDATOR STATUS; DEFENDANT'S MOTION CHALLENGING CONSTITUTIONALITY OF MEGAN'S LAW II BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., March 27, 2003. In this criminal case, Defendant pled guilty to one count of involuntary deviate sexual intercourse, a felony of the first degree, in violation of Section 3123 of the Crimes Code.~ The offense implicated the registration provisions of the Registration of Sexual Offenders Act, as amended (Megan's Law 11),2 and the circumstances of the crime subjected Defendant to the possibility of designation as a sexually violent predator under the act.3 An assessment by the Pennsylvania Sexual Offender Assessment Board produced a determination by a designated member of the Board that Defendant met the statutory criteria for a sexually violent predator.4 The Commonwealth thereafter filed a praecipe for a hearing to determine whether Defendant should be ~ See Act of Dec. 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. §3123(a)(1) (forcible compulsion), (2) (threat of forcible compulsion), (6) (victim less than 13), (7) (victim less than 16 and defendant more than four years older); N.T. 2-7, Guilty Plea Proceeding, May 13, 2002; Order of Court, May 13, 2002. The plea involved a plea bargain whereby the sentence to be imposed for the offense would be a term of imprisonment of not less than four years nor more than ten years in a state correctional institution. N.T. 3, Guilty Plea Proceeding, May 13, 2002. 2 Act of Oct. 24, 1995, P.L. 1079, §1, as amended, 42 Pa. C.S. §§9791 et seq. (Main Vol. and Supp. 2002). ~ Act of Oct. 24, 1995, P.L. 1079, §1, as amended, 42 Pa. C.S. §9795.4 (Supp. 2002). 4 Commonwealth's Ex. 1, Hearing, Feb. 11, 2003. found by the court to be a sexually violent predator,5 and Defendant filed a motion challenging the constitutionality of Megan's Law II in several respects.6 Defendant's motion contended that Megan's Law II was violative of federal and/or Pennsylvania constitutional provisions relating to ex post facto laws,7 double jeopardy,8 due process,9 equal protection,l° self-incrimination,~ cruel and 5 Commonwealth's Praecipe Pursuant to 42 Pa. C.S.A. §9795.4(e), filed Aug. 7, 2002. 6 Defendant's Motion To Challenge Constitutionality of Megan's Law II, filed Oct. 2, 2002; Defendant's Supplemental Motion To Challenge Constitutionality of Megan's Law II, filed Oct. 7, 2002. 7 Defendant's Supplemental Motion To Challenge Constitutionality of Megan's Law II, para. 23. In this regard, Defendant's motion stated, inter alia: Title 42, Sections 9792 (Definitions), 9795.2 (Registration procedures and applicability), 9795.4 (Assessments), 9796 (Verification of residence, and Penalty), 9798 (Other notification), and 9799.4 (Counseling of sexually violent predators) violate petitioner's rights against ex post facto punishment under of [sic] U. S. Const. Art. 1, § 9, Cl. 3 and Pa. Const. Art. 1, § 17, as those state and federal constitutional rights have long been understood. Id. 8 Defendant's Supplemental Motion To Challenge Constitutionality of Megan's Law II, para. 28. In this regard, Defendant's motion stated, inter alia: Title 42, Sections 9792 (Definitions), 9795.4 (Assessments), 9798 (Other notification), 9799.4 (Counseling of sexually violent predators), 9795.2(d) (Registration procedures and applicability; Penalty) collectively violate petitioner's right to protection under the Double Jeopardy Clause of the Fifth Amendment and Fourteenth Amendment of the United States Constitution, and Article I, Section 10 of the Pennsylvania Constitution by subjecting the petitioner to double jeopardy at a second trial on the greater included offense of "sexually violent predator" following the attachment of jeopardy on the "predicate" or a lesser included offense on which petitioner has been convicted, and by subjecting him to an enhanced sentence that he otherwise would not have received. Id. 9 Defendant's Supplemental Motion To Challenge Constitutionality of Megan's Law II, paras. 24, 25, & 30. In this regard, Defendant's motion stated, inter alia: Title 42, Sections 9792 (Definitions), 9795.2 (Registration procedures and applicability), 9795.4 (Assessments), 9796 (Verification of residence, and Penalty), 9798 (Other notification), and 9799.4 (Counseling of sexually violent predators) violate petitioner's right to Due Process of law under the Fourteenth Amendment of the United State[s] Constitution, and Article I, Sections 1 and 9 of the Pennsylvania 2 Constitution, by subjecting petitioner to a separate trial without a jury, governed by a standard of proof of less than "beyond a reasonable doubt," that may result in the imposition of "enhanced punishment" at the time of his sentence .... " Id., para. 24. In addition, Defendant's motion also stated: Title 42, Section 9792 (Definitions), violates petitioner's right to Due Process of law under the Fourteenth Amendment of the United States Constitution, and Article I, Sections 1 and 9 of the Pennsylvania Constitution, by providing a description of the offense of "sexually violent predator" and its constituent terms ("personality disorder," "mental abnormality" and "likely to engage") that are impermissibly vague, in part undefined and essentially unknowable. The application of such a definition in this criminal context undermines the right to proof beyond a reasonable doubt, and makes the decision to adjudicate unavoidably arbitrary and capricious. Id., para. 25. Finally, Defendant argued that, if these provisions do not intimate that Defendant is guilty of a second crime, then an alternative violation of Due Process was implicated. If the offense of "sexually violent predator" does not contain an actus reus, then Title 42, Sections 9792 (Definitions), 9795.4 (Assessments), 9798 (Other notifications), 9799.4 (Counseling of sexually violent predators), 9795.2(d) (Registration procedures and applicability; Penalty) collectively violate petitioner's right to Substantive Due Process of law under the fourteenth Amendment of the United States Constitution, and Article I, Sections 1, 9 & 15 of the Pennsylvania Constitution, by subjecting petitioner to a lifetime of enhanced punishment and deprivation of liberty based upon a present determination that a "personality disorder" or "mental abnormality" poses an immutable threat of dangerousness far into the distant future. Id., para. 30. l0 Defendant's Supplemental Motion To Challenge Constitutionality of Megan's Law II, para. 26. In this regard, Defendant's motion stated, inter alia: [I]f the statute's requirement that a defendant turn over the report of his expert to the state applies only to indigents who must "request [] another assessment" from the court (see Sections 9795.4(e)(2)), this disparate intrusion on the Fifth Amendment and privacy rights of the poor constitutes a violation of their right to equal protection of the law under our state and federal constitutions. Id., para. 26, subpara. 6. ~ Defendant's Supplemental Motion To Challenge Constitutionality of Megan's Law II, para. 26. In this regard, Defendant's motion stated: 3 unusual punishment,~2 privacy,~3 separation of powers,TM commencement of criminal proceedings,~5 and plurality of subjects in legislation.~6 A hearing was 1. The statute allows the assessment board to compel the petitioner "to give evidence against himself": by allowing the Board to requisition as evidence for the prosecution all statements made by the petitioner when he was institutionalized or subject to a court-ordered evaluation at any state facility by subjecting him to involuntary interrogation by the assigned assessor and/or by forcing an indigent offender either to mm over testimonial evidence in the hands of his expert or to forgo the opportunity to use an expert to contest the Commonwealth's charge. 3. These promises of entitlement to confidentiality constituted a legislative grant of immunity by establishing for petitioner a right not to have any of the documents generated in the course of his mental health treatment "released or disclosed to anyone."... Having gained and/or compelled his testimonial participation in these proceedings with a promised grant of immunity, the requisition by the assessment board of documents generated as a result of his participation in speech and communicative acts would constitute a violation of his right against self- incrimination. 4. Furthermore, under Article I, Section 9 of the Pennsylvania Constitution . .., petitioner should be protected "against the compelled production not just of incriminating testimony, but of any incriminating evidence." Id., subparas. 1, 3 & 4 (citations omitted). ~: Defendant's Supplemental Motion To Challenge Constitutionality of Megan's Law II, para. 29. In this regard, Defendant's motion stated, If the offense of "sexually violent predator" does not contain an actus reus in the form of a predicate offense, then the determination that petitioner is a sexually violent predator would impose cruel and unusual punishment in violation of his rights under the Eighth and Fourteenth Amendments of the United States Constitution, and Article I, Section 13 of the Pennsylvania Constitution, be punishing him for a status offense that consists of his mental status plus a prediction of future dangerousness. ~s Defendant's Supplemental Motion To Challenge Constitutionality of Megan's Law and 31. In this regard, Defendant's motion stated, inter alia: II, paras. 26 2. [B]y forcing all "State, county and local agencies, offices or entities" to provide the assessment board with all of their "records and information" on the petitioner (Section 9795.4(d)), the Act violates the privilege of confidentiality to which the petitioner has been promised entitlement under Title 42, Section 5944 (Psychotherapist-patient privilege), Title 42, Section 5945 (Confidential communications to school personnel), Title 50, Section 7111 of the Mental Health 4 Procedures Act (Confidentiality of Records), Pa.R. Crim. P. 1404 (Disclosure of pre-sentence reports), and 42 U.S.C.A. § 290dd-2 (Confidentiality of mental health records). 5. The release of mental health records further violates petitioner's right to privacy under Article I, Section 1 of the Pennsylvania Constitution, because this disclosure of material to which petitioner has a reasonable expectation of privacy intrudes upon petitioner's ;;interest in avoiding disclosure of personal matters"- here statements and records that intrude upon ;;a quintessential zone of human privacy,.., the mind." g. Finally, because the ;;effective assistance of counsel with respect to the preparation of [a] defense [to the charge of sexually violent predator] demands recognition that a defendant is as free to communicate with a psychiatric expert as with the attorney he is assisting," the petitioner's communication with his psychiatric expert, and the reports produced by that expert, are fully protected by the attorney-client privilege until and unless the decision is made to call the expert as a rebuttal witness. Id. para. 26, subparas. 2, 5 & g (citations omitted). Defendant's motion also stated: Title 42, Sections 9792 (Definitions), 9795.2 (Registration procedures and applicability), 9795.4 (Assessments), 9796 (Verification of residence, and Penalty), and 9798 (Other notification), collectively violate the protections afforded petitioner's rights to privacy under the Fourth and Fourteenth Amendments of the United States Constitution, and Article I, Sections 1, 8 & 25 of the Pennsylvania Constitution, by perpetually subjecting him to a form of public notification that broadly disseminates through leaflets, letters and the electronic media his identity, photograph, and home address, plus the judicial declaration that he has been designated a ;;sexually violent predator." This broad, unrestricted publication, and state sponsored stigmatization with a ;;Mark of Cain" or ;;Scarlet Letter," will indelibly brand petitioner ;;in the eyes of a hostile populace" and render him ;;subject to perpetual public animus" in violation of his right to privacy under the Pennsylvania and United States Constitutions. Id., para. 31 (citations omitted). ~4 Defendant's Supplemental Motion To Challenge Constitutionality of Megan's Law II, para. 32. In this regard, Defendant's motion stated, inter alia: Title 42, Sections 9795.4 (Assessments) and 9799.3 (Board) of this legislative enactment violate Article V, Sections 1, 2, 10(b) and 10(c) of the Pennsylvania Constitution, and the doctrine of the separation of powers, by encroaching upon the power of the Pennsylvania Supreme Court ~to prescribe general rules governing practice, procedure and the conduct of all courts," along with the accompanying proscription that ~[a]ll laws shall be suspended to the extent that they are inconsistent with rules prescribed under these provisions." By mandating that an executive agency perform a[n] adjudicative function in a judicial 5 held on the issues raised by the Commonwealth's praecipe and Defendant's motion on February 11, 2003. Based upon the evidence presented at the hearing, and for the reasons stated in this opinion, Defendant will be found to be a sexually violent predator and his challenge to Megan's Law II will be denied. STATEMENT OF FACTS The basic facts of this case were recited by the Commonwealth, and conceded by the defense, at the time of Defendant's guilty plea on May 13, 2002. [B]ack on August 23rd of 2001, Pennsylvania State Police received a report of sexual abuse of the Defendant's granddaughter .... She was at the time nine years of age. This was after she was taken to a doctor physician who examined [her], said that she had a tom hymen, and when proceeding, they also encroach upon the power of the Court as set forth in Article V, Section 1 to operate a "unified judicial system," and in Section 10(b) to appoint such "staff as may be necessary and proper for the prompt and proper disposition of the business of the courts." Id. (citations omitted). ~5 Defendant's Supplemental Motion To Challenge Constitutionality of Megan's Law TT, para. 27. In this regard, Defendant's motion stated, inter alia: Title 42 Sections [sic] 9795.4 (Assessments) violates the petitioner's right under Article T, Section 10 of the Pennsylvania Constitution to have this criminal proceeding initiated by indictment, or by "information" if done so "with the approval of the Supreme Court" and "filed in the manner provided by law."... Petitioner seeks to base his claim also on the Fifth and Fourteenth Amendments, should the indictment protection contained in the Fifth Amendment be extended to the states through the Fourteenth. Id. (citations omitted) 16 Defendant's Supplemental Motion to Challenge Constitutionality of Megan's Law TT, para. 33. In this regard, Defendant's motion stated, inter alia: The Legislature has violated Article TTT, Section 3 [of the Pennsylvania Constitution] by enacting in Senate Bill 380 legislation that covers multiple topics that are not germane to a single subject. These include, for example, combining an amendment to the Juvenile Act, which sets up time limitations for the adjudication and sentencing of delinquent juveniles, with the amendments that have been made to Subchapter H of Chapter 97 of Title 42 (Registration of Sexual Offenders). Id. (citations omitted). 6 asked to explain, [she] had explained that her grandfather had done certain things, but one of the things that she explained was that the Defendant, this girl's grandfather, had performed Involuntary Deviate Sexual Intercourse on her. [She] was under the age of 16 at the time this occurred. In fact, she was under the age of 13. The Defendant was four or more years older than her, and in fact, he is her.., grandfather. These acts are alleged to have happened on 801 Sandbank Road, Lot No. 24, in Dickinson Township, Cumberland County, Pennsylvania, between the years of 1994 up until the time of August of 2001. [The child] did state that there was actual penetration for the Involuntary Deviate Sexual Intercourse. · .. The sexual deviate intercourse that was complained of in this particular case would have either been her performing oral sex on the Defendant and/or him performing oral sex on her; in other words, penetration of his mouth to her vagina or her having penetration of her mouth with his penis. ~7 The circumstances of the offense were more particularly detailed in testimony of the affiant in the case, Pennsylvania State Trooper Christopher V. Manetta, at the hearing on the Commonwealth's praecipe and Defendant's motion: Q Can you give for the Court and state for the record what the background of the investigation was and how this came to light? A Certainly. On August 23, 2001, the nine-year-old victim in this case came with her mother to the State Police Barracks in Carlisle. At that time she reported that her grandfather, the Defendant, had been molesting her for several years. Q Did she state any specific acts, sexual acts that he committed against her? A Yes, she described sexual acts, including him inserting his finger into her vagina, him inserting his penis into her vagina, him inserting his penis into her mouth, him ~7 N.T. 3-4, Guilty Plea Proceeding, May 13, 2002. 7 inserting his tongue into her vagina, as well as him showing her sexually explicit images on his computer. Q Did she say whether he inserted anything else into her vagina? A Yes, she described what is best described as a vibrator that is shaped like a penis. Q ... Did she say where these events occurred in the house or in the curtilage of the residence? A Yes, she described it occurring in the living room area, which is where the computer is; also, I believe the bathroom and outside there was a tent erected in the yard, she described the incidents happening there as well. la Q Was there any report as to what the Defendant would do if the nine-year-old refused to commit these acts? A According to the nine-year-old, on at least one occasion she was smacked for trying to say no to a sexual act and he was--he forced her to--he forced his penis into her mouth. There was also one incident where he threatened to snap her throat or snap her neck if she failed to do the sexual things he wanted to do. Q Did the victim describe any of the type of kissing that was done with her and the grandfather? A She called it French kissing, she meant with 19 tongues. Defendant's date of birth was September 6, 1940, and his granddaughter's date of birth was September 12, 1991.20 A search of the residence where they lived yielded a vibrator from a drawer next to Defendant's computer.2~ In terms of pornography, the search also revealed "over a thousand images on [Defendant's] ~8 N.T. 4-6, Hearing, Feb. 11, 2003. 19 N.T. 8-9, Hearing, Feb. 11, 2003. :0 N.T. 8, Hearing, Feb. 11, 2003. :~ N.T. 6, Hearing, Feb. 11, 2003. 8 computer hard drive of children, as well as adults, in different states of undress and also in different sexual situations.''22 Further background information as to the crime and some information as to the Defendant's history appeared in materials gathered by the Sexual Offender Assessment Board for purposes of evaluating whether Defendant met the statutory criteria for a predatory sexual offender.23 The materials included Defendant's guilty plea order, the Information, the criminal complaint and affidavit of probable cause, police reports, a Pinnacle Health medical report and child abuse interview report by a physician with the child, a Cumberland County Children and Youth Agency screening form and case records of the agency, and similar documents.24 Information in these materials, of further relevance to the criteria, detailed (a) the termination of Defendant's marriage with his wife in the 1980's,25 (b) the commencement of sexual relations between Defendant and his granddaughter shortly after the child and her mother moved in with Defendant in January of 1994,26 (c) the continuation of these activities until August of 2001 when the child reported the abuse,27 (d) the progression of frequency of the activities to the point of"almost daily" occurrences in the final year,28 (e) sexual activities in the form of Defendant's penetration of the child's vagina with his penis, his finger and a penis-shaped vibrator,29 fellatio,3° cunnilingus,3~ fondling and licking of the 22 N.T. 7, Hearing, Feb. 11, 2003. 23 N.T. 34, Hearing, Feb. 11, 2003; Commonwealth's Ex. 3, Hearing, Feb. 11, 2003. This information was gathered by an investigator for the Board, Julia M. Dietz. Id. 24 Commonwealth's Ex. 3, Hearing, Feb. 11, 2003. 25 Commonwealth's Ex. 3 (Pennsylvania State Police Incident Report), Hearing, Feb. 11, 2003. 26 Commonwealth's Ex. 3 (Pennsylvania State Police Incident Report); (Child Abuse Interview Report, Dr. Tanya Dedyo), Hearing, Feb. 11, 2003. 27 Commonwealth's Ex. 3 (Pennsylvania State Police Incident Report), Hearing, Feb. 11, 2003. 28 Commonwealth's Ex. 3 (Pennsylvania State Police Incident Report), Hearing, Feb. 11, 2003. 29 Commonwealth's Ex. 3 (Pennsylvania State Police Incident Report), Hearing, Feb. 11, 2003. 30 Commonwealth's Ex. 3 (Pennsylvania State Police Incident Report), Hearing, Feb. 11, 2003. 9 child's breasts,32 causing the child to place her finger in her vagina and lick it,33 and French kissing,34 (f) Defendant's collection of child pornography on his computer,35 (g) Defendant's practice of displaying this child pornography, which included the depiction of parent/child sexual intercourse36 and of children having sex37 to the child,38 (h) Defendant's references to the child as his girlfriend,39 (i) Defendant's advice to the child that at her age she was "almost a woman," in response to her demurrer that she was too young to have sex,4° (j) Defendant's refusal to stop sexual activity when the child protested and cried,4~ (k) incidents in which Defendant threatened to snap the child's throat if she told anyone of the activities42 and slapped her when she failed to complete an act of fellatio,43 (1) Defendant's use of incentives such as a new toy44 or the prospect of a fishing trip45 37 Commonwealth's Ex. 3 38 Commonwealth's Ex. 3 39 Commonwealth's Ex. 3 40 Commonwealth's Ex. Hearing, Feb. 11, 2003. 3~ Commonwealth's Ex. 3 (Child Abuse Interview Report, Dr. Tanya Dedyo), Hearing, Feb. 11, 2003. 32 Commonwealth's Ex. 3 (Child Abuse Interview Report, Dr. Tanya Dedyo), Hearing, Feb. 11, 2003. 33 Commonwealth's Ex. 3 (Child Abuse Interview Report, Dr. Tanya Dedyo), Hearing, Feb. 11, 2003. 34 Commonwealth's Ex. 3 (Child Abuse Interview Report, Dr. Tanya Dedyo), Hearing, Feb. 11, 2003. 35 Commonwealth's Ex. 3 (Pennsylvania State Police Incident Report), Hearing, Feb. 11, 2003. 36 Commonwealth's Ex. 3 (Pennsylvania State Police Incident Report; Child Abuse Interview Report, Dr. Tanya Dedyo), Hearing, Feb. 11, 2003. (Children and Youth Services Agency Report), Hearing, Feb. 11, 2003. (Pennsylvania State Police Incident Report), Hearing, Feb. 11, 2003. (Children and Youth Services Agency Report), Hearing, Feb. 11, 2003. 3 (Screening Form, Children and Youth Services Agency Record), 4~ Commonwealth's Ex. 3 (Child Abuse Interview Report, Dr. Tanya Dedyo), Hearing, 2003. 42 Commonwealth's Ex. 3 (Pennsylvania State Police Incident Report), Hearing, Feb. 11, Feb. 11, 2003. 43 Commonwealth's Ex. 3 (Children and Youth Services Agency Report), Hearing, Feb. 11, 2003. 44 Commonwealth's Ex. 3 (Children and Youth Services Agency Report), Hearing, Feb. 11, 2003. 45 Commonwealth's Ex. 3 (Child Abuse Interview Report, Dr. Tanya Dedyo), Hearing, Feb. 11, 2003. 10 to promote the child's cooperation, and (m) an instance (involving sexual activity in a tent in the backyard of Defendant's residence) of Defendant's inattentiveness to the child once the sexual activity had been completed.46 The record did not include evidence as to Defendant's educational background,47 nor was there evidence of any history of drug or alcohol abuse.48 The record also did not indicate that any of three arrests in Defendant's background (for two counts of forgery in New Mexico in 1963, and one count of assault and battery in Nebraska in 1971) had resulted in convictions.49 Defendant exercised his right not to participate in the assessment by the Board.5° At the hearing before the court, Nancy W. Einsel, MS, CCMHC, LPC, a clinically certified mental health counselor with experience in the evaluation and treatment of sex offenders,5~ and member of Pennsylvania's Sexual Offender Assessment Board,52 testified on behalf of the Commonwealth. On the subject of whether Defendant suffered from a mental abnormality or personality disorder, Ms. Einsel noted the criteria under the DSM-IV TR (Diagnostic Statistical Manual, Volume IV, Text Revision) for the mental disorder known as pedophilia: You need to have sexual urges or fantasies or behaviors related to prepubescent children, that is someone under the age of thirteen, [and] you need to have acted on those, or had them affect your life in dramatic ways. 46 Commonwealth's Ex. 3 (Child Abuse Interview Report, Dr. Tanya Dedyo), Hearing, Feb. 11, 2003. 47 S~'¢ Commonwealth's Ex. 3, Hearing, Feb. 11, 2003. Defendant was a retired over-the-road truck driver. Id. (Pennsylvania State Police Incident Report). 48 See Commonwealth's Ex. 3 (see letter of Julie M. Dietz to Board member, June 19, 2002). 49 Commonwealth's Ex. 3 (letter of Julie M. Dietz to Board member, June 19, 2002). 50 Commonwealth's Ex. 3 (letter of Timothy L. Clawges, Esq., to Diane Dombach, Executive Director of Sexual Offender Assessment Board, May 20, 2002). 5~ Commonwealth's Ex. 2 (curriculum vitae), Hearing, Feb. 11, 2003. 52 N.T. 16, Hearing, Feb. 11, 2003. 53 N.T. 36-37, Hearing, Feb. 11, 2003. 11 [T]he diagnostic criteria as laid out by the DSM-IV TR [are] that.., there are sexual urges or fantasies or behaviors with a prepubescent child which is under the age of thirteen that continue over a period of at least six months..., [and] that the person having the fantasies, behavior or urges is at least five years older than the person they are fantasizing about .... And that the person acts on those urges or desires or behaviors,s4 In expressing her opinion that Defendant did suffer from pedophilia and that the condition was properly characterized as a mental abnormality,ss Ms. Einsel cited the ages of Defendant and his granddaughter,s6 the nature of the sexual activities that occurred between them,s7 the extended period of time over which the activities occurred,sa and Defendant's preoccupation with child pornography,s9 On the subject of whether Defendant's condition was such as to render him likely to engage in predatory sexually violent offenses, Ms. Einsel noted that predatory conduct in the present context connoted an act in a relationship promoted for the purpose of victimization.® In evaluating Defendant's conduct in this regard, Ms. Einsel "was looking for grooming behaviors, threats, bribes, using, trying to normalize sexual activity so that, [the child] would think it was okay.''61 Ms. Einsel explained grooming in the following terms: Grooming is, [are] behaviors or acts done by someone to promote the okayness of a behavior, to put the mind-set of the person they are wanting to behave in a certain way that would make it okay to. Victims can be groomed by making them 54 N.T. 43-44, Hearing, Feb. 11, 2003. 55 N.T. 24, 50, Hearing, Feb. 11, 2003. 56 N.T. 44, Hearing, Feb. 11, 2003. 57 N.T. 44, Hearing, Feb. 11, 2003. 58 N.T. 45, Hearing, Feb. 11, 2003. 59 N.T. 49, Hearing, Feb. 11, 2003. 60 N.T. 42, Hearing, Feb. 11, 2003. 61 N.T. 42, Hearing, Feb. 11, 2003. 12 believe that this is something that, that they are special, that this is something that will, that is helping the predator in some way. There is grooming behavior goes across the board. It is hard to define. It is what goes on between the relationship of getting the victim of an offense to go along with that offense in a way that they are either not frightened or they normalize it or they think, in fact, that it is an okay thing to da.62 Ms. Einsel concluded that Defendant had promoted the relationship between himself and his granddaughter for the purpose of victimizatian,63 and that the relationship was thus predatary.64 Among the factors leading her to this conclusion were the rapidity with which Defendant began the sexual relationship after the child arrived in his hame,65 his employment of grooming techniques to develop it,66 and his lack of concern for the child except as an object of sex.67 62 N.T. 40, Hearing, Feb. 11, 2003. 63 N.T. 42-43, Hearing, Feb. 11, 2003. 64 N.T. 50, Hearing, Feb. 11, 2003. 65 N.T. 43, Hearing, Feb. 11, 2003. 66 N.T. 54, Hearing, Feb. 11, 2003. When asked to give examples of grooming behavior employed by Defendant, Ms. Einsel responded as follows: Examples specific to this case would be to make sexual activity normal. To make her feel that the relationship she had with him, including the sexual activity, would be normal. Such as you are almost nine, you are almost a woman. Showing her pornography with parents having sex with their kids. Buying things to say okay, you do this or I will give you this. Those kind of things .... N.T. 54, Hearing, Feb. 11, 2003. 67 In this regard, Ms. Einsel testified as follows: The indication that I had was that he had little concern when she was crying, saying no, he would continue to do what he wanted to do. She was afraid, was trying to get used to the tent. He would have the tent, he would have sexual activity to her and then leave her there when he was gratified. Those kinds of things indicated that he didn't have care and concern for her. N.T. 54, Hearing, Feb. 11, 2003. 13 Noting further that pedophilia does not display the decline in recidivism with age that most sexual disorders do,68 that pedophilia is a condition associated with a likelihood of the commission of sexual acts,69 that "[h]ostility has.., been shown in the literature to be a factor in sexual recidivism,''7° and that single offenders have a higher incidence of recidivism than married offenders,TM Ms. Einsel expressed the opinion that Defendant, who had pled guilty in this case to a sexually violent crime,TM met the remaining two statutory criteria for a sexually violent predator,73 in that he suffered from a "mental abnormality or personality disorder''74 and this condition "ma[de him] likely to engage in predatory sexually violent offenses.''75 In reaching this conclusion, Ms. Einsel acknowledged the existence of several contrary indicators, in that "[1]iterature indicate[d] that familial victims are less closely associated with sexual recidivism than stranger victims are,''76 research suggested that criminal lifestyle or prior history of criminal activity, particularly sexual criminal activity, "was a factor to consider in terms of possible recidivism,''?? and offenders with "multiple victims are.., more highly associated with [sexual] recidivism .... ,?8 Defendant did not present any witnesses or exhibits at the hearing. At the conclusion of the hearing, the court took under advisement the issues of whether 68 N.T. 35, Hearing, Feb. 11, 2003. 69 N.T. 27, Hearing, Feb. 11, 2003. 70 N.T. 48, Hearing, Feb. 11, 2003. ex N.T. 52, Hearing, Feb. 11, 2003. 7: See Act of October 24, 1995, P.L. 1079, §1, as amended, 42 Pa. C.S. §9792 (2002 Supp.). 73 N.T. 50-51, Hearing, Feb. 11, 2003. 74 Act of October 24, 1995, P.L. 1079, §1, as amended, 42 Pa. C.S. §9792 (2002 Supp.); see N.T. 50, Hearing, Feb. 11, 2003. 75 Act of October 24, 1995, P.L. 1079, §1, as amended, 42 Pa. C.S. §9792 (2002 Supp.); see Commonwealth's Ex. 1, at 7 (Assessment Report). 76 N.T. 45, Hearing, Feb. 11, 2003. 77 N.T. 56, Hearing, Feb. 11, 2003. 78 N.T. 59, Hearing, Feb. 11, 2003. 14 Defendant should be designated a sexually violent predator and whether Defendant's challenge to the constitutionality of Megan's Law II should be upheld.79 DISCUSSION Sexually violent predator Under Megan's Law II, "predatory" is defined as "[a]n act directed at a stranger or at a person with whom a relationship has been established or promoted for the primary purpose of victimization." Act of October 24, 1995, P.L. 1079, §1, as amended, 42 Pa. C.S. §9792 (2002 Supp.). A "sexually violent predator" is defined 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 .... " Id. (emphasis added). An assessment of whether a person is a sexually violent predator is to include a consideration of the following factors, inter alia: (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. 79 Order of Court, Hearing, Feb. 11, 2003. 15 (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 or mental abnormality. (iv) Behavioral characteristics that contribute to the individual's conduct. (4) Factors that are supported in a sexual offender assessment filed as criteria reasonably related to the risk of reoffense. Id §9795.4(b). "Cruelty," for purposes of the statute, may be defined as "[t]he intentional and malicious infliction of physical suffering upon living creatures, particularly human beings; or, as applied to the latter, the wanton, malicious, and unnecessary infliction of pain upon the body, or the feelings and emotions; abusive treatment; inhumanity; [or] outrage." Commonwealth v. Pracht, No. 02-0133 Criminal Term (Cumberland Co. Oct. 11, 2002) (slip op. at 4) (Bayley, J.) (citations omitted). Trial courts are encouraged to "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) [of Megan's Law II] which the legislature has deemed relevant." Commonwealth v. Krouse, 799 A.2d 835, 842 (Pa. Super. Ct. 2002). Where the issue arises, the Commonwealth has the burden of proving by clear and convincing evidence that a defendant is a sexually violent predator. Act 16 of October 24, 1995, P.L. 1079, §1, as amended 42 Pa. C.S. §9795.4(e)(3) (2002 Supp.). In the present case, the criminal conduct involved (a) a single victim, (b) unnecessary force, (c) varied, invasive, and progressively more frequent sexual activity with a very young child over a period of years, (d) a grandfather/granddaughter relationship subsisting in the grandfather's household, (e) a victim whose age, during the course of the activity, advanced from four- or five- to nine-years-old, (f) unusual cruelty to the child in the form of a threat to snap her throat, physical force, and refusal to refrain in response to her requests and crying, and (g) a victim with the limited mental capacity of a young child. Defendant's prior offense history did not include (a) any prior convictions, (b) service of any sentences, or (c) participation in any sexual offender programs. Characteristics of Defendant included (a) his age, which advanced from 55- or 56- years-old to 60-years-old during the course of the criminal conduct, (b) the absence of any known record of drug abuse, (c) a mental abnormality in the form of pedophilia, and (d) behavioral characteristics such as development of a computer library of child pornography, employment of grooming and other techniques, not excluding force, to further a sexual relationship with a child, performance of sex acts of an intense, varied and progressively frequent nature upon the child over an extended period, and conduct suggestive of an interest in the child which was primarily sexual in nature. Finally, other factors supported in the sexual offender assessment conducted by Ms. Eisen and reasonably related to the risk of reoffense have been discussed above. Based upon the evidence presented at the hearing, it is apparent that some factors, such as the absence of a prior record of criminal convictions and the familial nature of the relationship herein, tend to support the proposition that Defendant is not a sexually violent predator as that term is used in Megan's Law II. It is also possible that, in the future, the effect of incarceration and treatment available in the state correctional system, as well as the absence of an opportunity 17 for a repetition of the offense with another family member, will greatly decrease the likelihood of a reoccurrence of misconduct. However, the court is satisfied that, on balance, the testimony and exhibits presented at the hearing, including evidence as to (a) Defendant's condition of pedophilia, (b) the extreme nature and duration of the sexual victimization of the child in this case, and (c) the opinion of an expert on the subject, represented clear and convincing proof that, as of the present date, Defendant, who is awaiting sentence following entry of a plea of guilty to involuntary deviate sexual intercourse, suffers from a mental abnormality or personality disorder, in the form of pedophilia, which makes him likely to engage in predatory sexually violent offenses. For this reason, Defendant will be determined to be a sexually violent predator. Constitutionality of Megan's Law II. "In Commonwealth v. Williams, [557 Pa. 285,] 733 A.2d 593 (Pa. 1999), the Supreme Court of Pennsylvania held that the predecessor statute to Megan's Law II was unconstitutional. That statute, Megan's Law I, provided[, inter alia,] for enhanced imprisonment of a person found to be a sexually violent predator in that the offender's maximum term of confinement for a predicate offense was increased to life imprisonment notwithstanding any lesser statutory maximum penalty.''8° In this regard, Megan's Law I contained a presumption, rebuttable only by clear and convincing evidence, that one convicted of certain offenses was a sexually violent predator.8~ Megan's Law II, effective July 9, 2000, eliminated the enhanced penalty and reversed the presumption. Act of May 10, 2000, P.L. 74, §3, 42 Pa. C.S. §9791 et seq. (Supp. 2002). The subject of the legislation containing Megan's Law II, as reflected in its title, was as follows: 8o Commonwealth v. Ortiz, No. 99-0849 Criminal Term (Cumberland Co. Feb 13, at3). 81 Id. 2002) (slip op. 18 Amending Title 42 (Judiciary and Judicial Procedure) of the Pennsylvania Consolidated Statutes, providing for guardians ad litem in juvenile matters; further providing for counsel in juvenile matters, for adjudications in certain juvenile matters and for the registration of sexual offenders; and making a repeal82 The issues raised by Defendant challenging Megan's Law II were adjudicated favorably to the Honorable Edgar B. Bayley of this court in Commonwealth v. Ortiz, No. 99-0849 Criminal Term (Cumberland Co. Feb. 13, 2002).83 Pursuant to the coordinate jurisdiction rule,84 the holding and rationale expressed by Judge Bayley in the opinion in Ortiz, a copy of which is attached hereto, are adopted with respect to Defendant' s motion. By way of amplification and further response to Defendant's position, several points may be made. First, the premise underlying most of the constitutional bases for challenge has been subverted by recent appellate holdings that such statutes are essentially civil rather than criminal in nature and effect. See, e.g., Smith v. Doe, 2003 WL 728556 (U.S. Sup. Ct. March 5, 2003); Commonwealth v. Fleming, 801 A.2d 1234, 1238 (Pa. Super. Ct. 2002). Second, some of the grounds relied upon by Defendant in his motion do not affect him personally, as a result of which he lacks standing to advance them.as Finally, Defendant's argument that Megan's Law II is violative of a provision of the the constitutionality of Commonwealth by the 82 Act of May 10, 2000, P.L. 74, No. 18. 83 Defendant's motion, as supplemented, was a replication of the defendant's motion in Ortiz. 84 See Yudacufski v. Commonwealth, Department of Transportation, 499 Pa. 605, 612, 454 A.2d 923,926 (1982). 85 "[O]ne who is unharmed by a particular feature of a statute will not be heard to complain of its alleged unconstitutionality." Commonwealth v. Bonadio, 490 Pa. 91, 95 n.2, 415 A.2d 47, 49 n.2 (1980). For instance, Defendant's criminal conduct in this case continued after the effective date of Megan's Law II, rendering his argument that the act provided for an ex post facto punishment an abstract one. 19 Pennsylvania Constitution regarding the title and subject matter of legislation is not supported by the evidence,a6 For the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 27th day of March, 2003, upon consideration of the Commonwealth's praecipe with regard to Defendant's status as a sexually violent predator and of the Defendant's motion challenging the constitutionality of Megan's Law II, it is ordered and directed as follows: 1. Defendant is found to be a sexually violent predator; and 2. Defendant's motion challenging the constitutionality of Megan's Law II is denied. BY THE COURT, Jaime M. Keating, Esq. Chief Deputy District Attorney Timothy L. Clawges, Esq. Assistant Public Defender s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 86 Section 3 of Article III of the Pennsylvania Constitution provides that ;;[n]o bill shall be passed containing more than one subject, which shall be expressed in its title .... "With respect to the subject matter of the statute in question, it is apparent that a common theme was juveniles. With respect to the title of the bill, relief would be dependent upon proof either ;;(1) that the legislators and the public were actually deceived as to the act's contents at the time of passage, or (2) that the title on its face is such that no reasonable person would have been on notice as to the act's contents." In re Commonwealth, Department of Transportation, 511 Pa. 620, 627, 515 A.2d 899, 902 (1986). Neither has been shown in this case. 20 21 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo BILLY LEE REILY NO. 01-1882 CRIMINAL TERM IN RE: COMMONWEALTH'S REQUEST FOR DETERMINATION OF SEXUALLY VIOLENT PREDATOR STATUS; DEFENDANT'S MOTION CHALLENGING CONSTITUTIONALITY OF MEGAN'S LAW II BEFORE OLER, J. ORDER OF COURT AND NOW, this 27th day of March, 2003, upon consideration of the Commonwealth's praecipe with regard to Defendant's status as a sexually violent predator and of the Defendant's motion challenging the constitutionality of Megan's Law II, it is ordered and directed as follows: 1. Defendant is found to be a sexually violent predator; and 2. Defendant's motion challenging the constitutionality of Megan's Law II is denied. BY THE COURT, Jaime M. Keating, Esq. Chief Deputy District Attorney Timothy L. Clawges, Esq. Assistant Public Defender J. Wesley Oler, Jr., J.