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HomeMy WebLinkAboutCP-21-CR-0691-2003COMMONWEALTH V. OSCAR SHOEMAKER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CP-21-CRIMINAL 691 - 2003 IN RE: SEXUALLY VIOLENT PREDATOR DETERMINATION BEFORE GUIDO, J. OPINION AND ORDER OF COURT On November 10, 2003, the defendant was convicted by a jury of involuntary deviate sexual intercourse~and indecent assault.2 He was acquitted of a rape charge.3 As required by law, we requested the Pennsylvania Sexual Offenders Assessment Board to do an evaluation and assessment of the defendant. Following receipt of the evaluation and assessment, the Commonwealth praeciped this Court to certify the defendant as a sexually violent predator. We held an evidentiary hearing on March 11, 2004. The only witness presented by either side was Nancy W. Einsel, a member of the Sexual Offenders Assessment Board. F1NDINGS OF FACT The defendant was convicted of involuntary deviate sexual intercourse which is one of the sexually violent offenses enumerated in 42 Pa. C.S.A. § 9795.1. The offense involved only one victim.4 The defendant did not exceed the means necessary to achieve 1 18Pa. C.S.A. § 3123(a)(7). 2 18 Pa. C.S.A. § 3126(a)(8). 3 18Pa. C.S.A. § 3121(2). 4 42 Pa. C.S.A. § 9795.4 lists numerous factors to be included in a "sexually violent predator" assessment. We have attempted to address all of these in our findings of fact. NO. CP-21-CRIMINAL 691 - 2003 the offense. The nature of the sexual contact with the victim included forcing her to perform oral sex upon him and then forcing her to allow him to perform oral sex upon her.5 In addition, he attempted to have vaginal intercourse with her. All of these events took place in a remote mountainous area where the defendant had taken the victim under false pretenses. The defendant knew the victim well. She was the girlfriend of his son and pregnant with his grandchild. The victim was only 14 years old at the time of the offense. The offense did not include a display of unusual cruelty by the defendant. The victim did not have any mental handicaps and appeared to be of average intelligence. The defendant has a longstanding criminal record evidencing antisocial behavior. He has been convicted for burglary, cruelty to animals, criminal mischief and driving under the influence. While none of his prior convictions were for sexually related offenses, he was previously arrested for indecent assault, which charge was nolle prossed.6 The defendant has completed all of his prior sentences. However, he did not perform well while on parole. He reoffended while on parole for burglary and he did not complete the required drug and alcohol treatment while on parole for driving under the influence. s Having heard the testimony at thai, we are satisfied by clear and convincing evidence that defendant used force (grabbing her head and forcing it onto his penis) and threats (refusing to drive her back down the mountain) in order to have his way with the victim. 6 The facts of that offense as related by Ms. Eisner bore similarities to this case, including defendant's abuse of alcohol and attempts to have his way with an unwilling victim. The victim in the earlier case had sufficient maturity and fortitude to be able to successfully fend off his unwanted advances. NO. CP-21-CRIMINAL 691 - 2003 The defendant is 42 years old. He has never participated in available programs for sexual offenders. There is no evidence that the defendant uses illegal drugs. However, he does abuse alcohol. He does suffer from a recognized personality disorder. Specifically, Ms. Einsel diagnosed him as having Personality Disorder Not Otherwise Specified (NOS). The defendant uses women as objects of sexual gratification. He has a pervasive history of disrespect toward and sexual use of women.7 The defendant's primary purpose in establishing a relationship with the victim was not to victimize her. The forced sexual intercourse with her was a crime of opportunity, not a pre-planned predatory act. We are convinced, however, that his anti- social attitude, coupled with his view of women as objects for his sexual gratification and his chronic abuse of alcohol make him likely to commit other offenses, including sexually violent offenses. CONCLUSION OF LAW Defendant is not a sexually violent predator within the meaning of Pennsylvania Megan' s Law II.8 DISCUSSION The Commonwealth has the burden of proving by clear and convincing evidence that the defendant is a sexually violent predator. "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'." Less, er v. Rubi,so,, 527 Pa. 393, 592 A.2d 678, (1991). 7 Ms. Einsel testified that she relied upon the trial transcript, the police report involving the nolle prossed indecent assault charge and the grand jury testimony of defendant's sister and brother-in-law to reach this conclusion. We found her testimony in this regard to have been convincing. 8 42 Pa. C.S.A. § 9791 et seq. NO. CP-21-CRIMINAL 691 - 2003 Megan's Law defines "sexually violent predator" as follows: 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. 42 Pa. C.S.A. § 9792. Therefore, in order for us to find the defendant to be a sexually violent predator, the Commonwealth must prove the following three elements by clear and convincing evidence: 1) defendant suffers from a personality disorder; 2) the personality disorder makes him likely to engage in sexually violent offenses, and 3) those sexually violent offenses must be predatory in nature. We are satisfied that the Commonwealth has proven the first two elements. However, it has failed to meet its burden in connection with the third. The defendant has been diagnosed with a specific personality disorder, i.e. Personality Disorder (NOS). According to the Commonwealth's witness, it is evidenced by a "pervasive pattern of offensive disregard for and violation of the rights of others".9 Furthermore, not only did he commit a sexually violent offense in the instant case, his personality disorder "coupled with his view of women as objects for his sexual gratification as well as his sense of entitlement and chronic alcohol abuse.., make him likely to commit sexually violent acts in the future.''~° We found Ms. Einsel's testimony in connection with these first two elements to be both credible and convincing. The third element is much more problematic. The act defines "predatory" as follows: 9 Commonwealth's Exhibit 2, p. 7. lo Commonwealth's Exhibit 2, p. 8. NO. CP-21-CRIMINAL 691 - 2003 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. 42 Pa. C.S.A. § 9792 (emphasis added). In order to be predatory: an act must be directed either at 1) a stranger or 2) a person "with whom a relationship has been established or promoted for the primary purpose of victimization". There is nothing in the instant case, or in the defendant's history, that would lead us to believe that his sexually violent conduct can be classified as predatory. The evidence presented by the Commonwealth established that the defendant sexually assaulted the victim in this case and attempted to sexually assault another woman in 1989. In neither case was the victim a stranger to the defendant. Nor did he establish or promote his relationship with either victim "for the primary purpose" of victimizing her. In the 1989 incident the defendant and his wife were friends of the victim. In the instant case, the victim was the girlfriend of his son. The common denominator in each case was the defendant's abuse of alcohol which, coupled with his personality disorder, resulted in him taking advantage of a previously established relationship. In other words, his crimes were crimes of opportunity, not the preplanned acts of a predator. Therefore, while we view the defendant as a sexually violent criminal who is likely to reoffend, we cannot say that he is a "sexually violent predator" as the legislature has defined that term. NO. CP-21-CRIMINAL 691 - 2003 ORDER OF COURT AND NOW, this 30TM day of MARCH, 2004, having found that the Commonwealth has not met its burden of proof, its request to find the Defendant a "sexually violent predator" within the meaning ofMegan's Law II is DENIED. By the Court, /s/Edward E. Guido Edward E. Guido, J. Matthew P. Smith, Esquire For the Commonwealth H. Anthony Adams, Esquire For the Defendant Probation Sexual Offenders Assessment Board :sld