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HomeMy WebLinkAboutCP-21-CR-0258-2004 COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. BRYAN L. WRIGHT CP-21-CR-258-2004 IN RE: MOTION OF DEFENDANT IN LIMINE TO LIMIT TESTIMONY AS TO "SEXUALLY VIOLENT PREDATOR" STATUS OPINION AND ORDER OF COURT Bayley, J., April 6, 2005:-- Defendant, Bryan L. Wright, was charged on an information with the following counts: SEXUAL ABUSE OF CHILDREN,1 cause or knowingly permit a child under 18 years of age, to engage in a prohibited sexual act, or in simulation of such act, knowing or having reason to know or intending that such act would be photographed or filmed; or knowingly photograph or film a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such an act; SEXUAL ABUSE OF CHILDREN (4 counts), 2 knowingly possess or control any book, magazine, pamphlet, slide, photograph, film, videotape or other material depicting a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such act; INDECENT EXPOSURE,3 intentionally, knowingly or recklessly expose his genitals in any public place or in any place where there are present other persons under circumstances in which he knew or should have known that this conduct was likely to 118 PaC.S. S 6312(b). Felony 2. 218 PaC.S. S 6312(d). Felony 2. 318 PaC.S. S 3127. Misdemeanor 1. CP-21-CR-258-2004 offend, affront or alarm; CRIMINAL SOLICITATION - STATUTORY SEXUAL ASSAUL T,4 with the intent of promoting or facilitating the commission of the crime of Statutory Sexual Assault, command, encourage or request another person to engage in specific conduct which would constitute such crime or an attempt to commit such crime or which would establish hislher complicity in its commission or attempted commission; SELLING OR FURNISHING LIQUOR OR MALT OR BREWED BEVERAGES TO MINORS (2 counts),5 intentionally and knowingly sell or intentionally and knowingly furnish, or purchase with the intent to sell or furnish, any liquor or malt or brewed beverage to a person who is less than 21 years of age. On July 20, 2004, defendant pled guilty to the first count of sexual abuse of children in full satisfaction of all of the charges. The facts set forth in the plea colloquy were: [d]uring the late spring and early summer of 2003, a 15-year-old female victim was visiting the defendant at his residence at 309 West Locust Street, Mechanicsburg, Cumberland County. During this time, the defendant asked the 15-year-old victim to take off her clothes. She took off her shirt only and posed naked from the waist up in various sexual positions. The defendant then took the pictures of the 15-year-old victim with a - took pictures of the 15-year-old victim with a digital camera, downloaded the pictures onto a zip file and then viewed those pictures on the computer with the victim. Pursuant to a valid search warrant of the defendant's computer and zip disks were seized, 15 pictures of the 15-year-old female victim were 418 PaC.S. S 902 - 3122.1. Felony 2. 5 18 PaC.S. S 6310.1. Misdemeanor 3. -2- CP-21-CR-258-2004 found along with approximately 1400 other pictures of child pornography. An order was entered to obtain an assessment to determined if, under Megan's Law 11,42 Pa.C.S. Sections 9791-9799, defendant is a "sexually violent predictor.,,6 A report has been filed and the Commonwealth seeks a hearing to adjudicate that issue. Defendant filed a motion in limine, maintaining: The Commonwealth should be precluded from allowing its proposed expert to support her conclusion that the Defendant should be deemed a SVP with allegations that the Defendant has denied and that are not part of the record. The Commonwealth opposes the motion. The Commonwealth objects to this limitation, and further maintains that the issue has been resolved by the Supreme Court of Pennsylvania in Commonwealth v. Sanford, 863 A.2d 428 (Pa. 2004). Section 9795.4 of the Megan's Law II provides: Assessment. . . . An assessment shall include, but not be limited to, an examination of 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: 6 "Sexually violent predator" (SVP), is defined in Section 9792 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. -3- CP-21-CR-258-2004 (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. (Emphasis added. ) In Commonwealth v. Krouse, 799 A.2d 835 (Pa. Super. 2002), the Superior Court of Pennsylvania reversed a finding by a trial court that the defendant was a SVP. It concluded that the Commonwealth failed to produce clear and convincing evidence sufficient to support the trial court's determination. In a concurring opinion, Judge Bowes stated: I conclude that a determination that a defendant is a sexually violent predator cannot be based upon unproven allegations that are not established by the factual basis for a guilty plea and that are not supported by the nature of the charges to which a defendant has pled guilty, especially when the defendant consistently has denied the unproven allegations. Commonwealth v. Berrigan, 369 Pa. Super. 145, 535 A.2d 91 (1987) (en banc) (when imposing sentence, the sentencing court is not permitted to rely upon denied allegations established only through hearsay). This procedure is equivalent to the prohibited procedure whereby a sentencing court, when sentencing the defendant, has relied upon the facts of a crime which the jury determined the defendant has not committed. See Commonwealth v. Smithton, 429 Pa.Super. 55, 631 A.2d 1053 (1993). The determination of sexually violent predator status carries with it serious, life-long repercussions, and must be based upon facts of record, and not mere allegations of wrongful conduct, no matter how egregious. The Commonwealth's reliance on Commonwealth v. Sanford, supra, is wholly -4- CP-21-CR-258-2004 misplaced. In Sanford, a trial court concluded that a psychologist's testimony sufficiently established by clear and convincing evidence that the defendant was a SVP. The Superior Court of Pennsylvania reversed, stating that it was compelled to find that the evidence was insufficient because the expert's testimony was almost entirely dependent upon the original warrant and charging document and their unproven allegations, rather than the actual basis of the guilty plea. The Commonwealth filed a petition for allowance of an appeal in the Supreme Court of Pennsylvania asserting that the Superior Court erred in its determination that there was insufficient evidence to establish that the defendant was a SVP. The Supreme Court reversed and remanded to the Superior Court, stating: While we are uncertain as to the precise thrust of the Superior Court's rational, it appears that the Superior Court found the evidence to be insufficient because [the expert's] testimony was somehow inadmissible due to its reliance on the affidavit of probable cause in the charging documents. The defendant such as Appellee may, of course, raise a challenge to the admissibility of evidence adduced by the Commonwealth at a SVP hearing; and appellate court may ultimately find such a challenge to be meritorious and that the defendant is entitled to a new SVP hearing.? Yet a challenge to the admissibility of evidence is separate from a sufficiency claim. Indeed, it is improper for a court, when reviewing a sufficiency challenge, to eliminate from its consideration any evidence which it deems to be inadmissible. . . . Accordingly, to the extent that the Superior Court disregarded [the expert's] testimony because it found the testimony inadmissible, it erred. ? We render no opinion as to whether [the expert's] reliance on the affidavit of probable cause and the charging documents somehow render her testimony inadmissible as this issue is not before this court. (Emphasis added.) We agree with the analysis of Judge Bowes in Commonwealth v. Krouse, -5- CP-21-CR-258-2004 supra. Section 9795.4 of Megan's Law II specifically provides that it shall include the "Facts of the current offense," and "Prior offense history," not unproven offenses. The current offense for which defendant has been held culpable is "sexual abuse of children" on the facts set forth in the plea colloquy. The adjudication of whether defendant is a "sexually violent predator" is not a trial within a trial as to defendant's wrongdoing. If the Commonwealth had wished to enhance its position that defendant is a "sexually violent predator," it should have taken its entire case to trial in an effort to convict defendant of the other charges in the information, or it should not have been willing to accept a plea to the one offense. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this day of April, 2005, the motion of defendant in limine IS GRANTED to the extent that at the hearing to determine if defendant is a "sexually violent predator," evidence is precluded that is not based upon facts of record in the guilty plea colloquy, and not mere allegations of wrongful conduct for which defendant has not been convicted. By the Court, Edgar B. Bayley, J. Michelle H. Sibert, Esquire For the Commonwealth Andrew W. Norfleet, Esquire F or Defendant -6- CP-21-CR-258-2004 :sal -7- COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. BRYAN L. WRIGHT CP-21-CR-258-2004 IN RE: MOTION OF DEFENDANT IN LIMINE TO LIMIT TESTIMONY AS TO "SEXUALLY VIOLENT PREDATOR" STATUS ORDER OF COURT AND NOW, this day of April, 2005, the motion of defendant in limine IS GRANTED to the extent that at the hearing to determine if defendant is a "sexually violent predator," evidence is precluded that is not based upon facts of record in the guilty plea colloquy, and not mere allegations of wrongful conduct for which defendant has not been convicted. By the Court, Edgar B. Bayley, J. Michelle H. Sibert, Esquire For the Commonwealth Andrew W. Norfleet, Esquire F or Defendant :sal