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Home My WebLink AboutCP-21-CR-2442-2008 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CHARGES: v. : (1) INDECENT ASSAULT : (2) CORRUPTION OF MINORS CHRISTOPHER KENNETH : STRUCHEN : OTN: K827583-1 : CP-21-CR-2442-2008 IN RE: SEXUALLY VIOLENT PREDATOR DETERMINATION BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., April 26, 2010. In this Megan’s Law case, Defendant pled guilty on March 24, 2009, to indecent assault, a misdemeanor of the first degree, and corruption of minors, a misdemeanor of 1 the first degree.This case was referred to the Pennsylvania Sexual Offenders Assessment Board for purposes of an assessment as to whether Defendant should be 2 classified as a sexually violent predator. 3 Based upon an affirmative response by the Sexual Offenders Assessment Board, 4 the Commonwealth filed a praecipe for a hearing on the issue,which was held on April 15, 2010.At the hearing, Nancy W. Einsel, M.S., CCMHC, LPC, a member of the Pennsylvania Sexual Offenders Assesment Board, testified on behalf of the Commonwealth in accordance with a report which she prepared on Defendant; Dr. Stanley E. Schneider, Ed.D., testified on behalf of Defendant. For the reasons stated in this opinion, Defendant will be determined to be a sexually violent predator. 1 Order of Court, March 24, 2009. 2 Order of Court, March 24, 2009. 3 Commonwealth’s Ex. 1, Hearing, April 15, 2010. 4 Commonwealth’s Praecipe Pursuant to 42 Pa. C.S.A. §9795.4(e), filed June 8, 2009. STATEMENT OF LAW and FINDINGS OF FACT Statement of Law A predatory act is defined in Section 9792 of the Judicial Code as “[a]n act directed at a stranger or at a person with whom a relationship has been initiated, established, maintained or promoted, in whole or in part, in order to facilitate or support victimization.” Section 9792 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.) Section 9792 defines a “mental abnormality” as “[a] congenital or acquired condition of a person that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons.” The Commonwealth bears the burden of establishing that the defendant is a sexually violent predator by clear and convincing evidence. 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 hesitance, of the truth of the precise facts in issue.”In re R.N.J., 2009 PA Super 248, ¶9, 985 A.2d 273, 276.In Commonwealth v. Krouse, the Superior Court of Pennsylvania stated: [W]e strongly recommend that the 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. Commonwealth v. Krouse, 799 A.2d 835, 842 (Pa. Super. 2002). Section 9795.4(b) of Megan’s Law II 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. 2 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: 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 field as criteria reasonably related to the risk of reoffense. 42 Pa. C.S.A. §9795.4(b). Section 9795.4(b) is not “a mere checklist where one simply totals and compares the presence or absence of designated factors.” Commonwealth v. Meals, 590 Pa. 110, 123, 912 A.2d 213, 221 (2006). “[T]he presence or absence of certain factors may simply suggest the presence, or absence, of one or more particular types of abnormalities . . . .” Id. Findings of Fact The male victim in this case, whose date of birth was January 27, 2003, was the biological son of Defendant.Defendant had sexual relations with the victim starting prior to the child’s first birthday until he reached the age of five.The victim was discovered by his mother while he was acting out sexually with his younger siblings.The victim told his mother that he learned this behavior from his father.The victim reported that: [H]is father, Mr. Struchen, ‘touches my pee-pee and my butt.’ He indicated a pulling motion on his ‘pee-pee’ and stated that Mr. Struchen smacks his ‘butt’ with a belt and his hand. The victim reported that the offenses happened at his father’s (Mr. Struchen) house while his Nana was at work. The victim disclosed that on more than one occasion, Mr. 3 Struchen pulled his (the victim) pants down and played with his penis. He related that Mr. Struchen told him that if he told anyone about the sexual assaults that he (Mr. Struchen) would ‘get a job like a policeman, take me 5 away to jail, and never help me to get out.’ Relating to the specific statutory factors enumerated in the Judicial Code as being of particular relevance to a determination of whether a person is a sexually violent predator, the following additional findings are made: Victim characteristics. The victim is the biological son of Defendant. The victim was less than one year old when the instant offenses began and was five years old when they ceased. Means necessary to commit offense. The record indicates that Defendant threatened the child with jail. Nature of sexual contact. Mr. Struchen performed oral sex on the victim and fondled the victim’s penis over a time span of approximately four years. Relationship to the victim. Mr. Struchen was the biological father of the victim. Age of the victim. The victim was a male less than one year of age at the time of the commencement of the instant offenses and five years old when they ceased. Display of unusual cruelty. The record indicates that Defendant threatened the child with jail. Mental Capacity of the victim. There is no indication in the record that the victim displayed a diminished mental capacity other than being extremely young at the time of the abuse. Prior offense history. Mr. Struchen had no arrest record prior to the instant offense. Mr. Struchen was arrested and convicted of simple assault during the pendency of this case. Age of the individual. Mr. Struchen was born May 12, 1981, and was between the ages of approximately 22 to 26 years old over the four-year period in 5 Commonwealth’s Ex. 1, at 1. 4 which the offense occurred.Mr. Struchen was significantly - more than 5 years - older than the victim. Use of illegal drugs. There is no indication that drugs or alcohol was a factor in this offense. Mental illness, mental disability or mental abnormality. Mr. Struchen was diagnosed with a mental abnormality. Specifically, he was diagnosed with Pedophilia, non-exclusive type. Behavioral characteristics contributing to the conduct. “Mr. Struchen has a history of violence, emotional disregulation and poor coping and problem 6 solving skills in addition to sexual deviance and preoccupation.” He may have been diagnosed with Bipolar Disorder and has attempted suicide on at least two occasions. Mr. Struchen has shown a propensity towards sexual deviance and preoccupation over multiple years and has consistently acted forcefully to satisfy his needs and gain control. Finally, it was the opinion of the Commonwelath’s highly qualified expert that Defendant meets the criteria for a diagnosis of Pedophilia, non-exclusive type. It was the expert’s further opinion that Defendant meets the definition established by statute for predatory behavior. Therefore, the expert concluded with a reasonable degree of professional certainty that Christopher Struchen meets the criteria set forth by statute to be classified as a Sexually Violent Predator. While the court also found the testimony of Dr. Schneider very helpful, it found his ultimate conclusion less compelling than that of Ms. Einsel. For the foregoing reasons, and by clear and convincing evidence, the court concludes that Defendant (a) has been convicted of a sexually violent offense as set forth in section 9795.1 of the Judicial Code and (b) is likely to engage in predatory sexually violent offenses. Accordingly, the following order shall be entered: 6 Commonwealth’s Ex. 1, at 3. 5 ORDER OF COURT th AND NOW this 26 day of April, 2010, upon consideration of the Commonwealth’s Praecipe Pursuant to 42 Pa. C.S.A. §9795.4(e), following a hearing held on April 15, 2010, and for the reasons stated in the accompanying opinion, Defendant is hereby determined to be a sexually violent predator. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Christylee L. Peck, Esq. Senior Assistant District Attorney Jacob Jividen, Esq. Attorney for Defendant Sexual Offenders Assessment Board Cumberland County Adult Probation Cumberland County Prison 6 7 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CHARGES: v. : (1) INDECENT ASSAULT : (2) CORRUPTION OF MINORS CHRISTOPHER KENNETH : STRUCHEN : OTN: K827583-1 : CP-21-CR-2442-2008 IN RE: SEXUALLY VIOLENT PREDATOR DETERMINATION BEFORE OLER, J. ORDER OF COURT th AND NOW this 26 day of April, 2010, upon consideration of the Commonwealth’s Praecipe Pursuant to 42 Pa. C.S.A. §9795.4(e), following a hearing held on April 15, 2010, and for the reasons stated in the accompanying opinion, Defendant is hereby determined to be a sexually violent predator. BY THE COURT, __________________ J. Wesley Oler, Jr., J. Christylee L. Peck, Esq. Senior Assistant District Attorney Jacob Jividen, Esq. Attorney for Defendant Sexual Offenders Assessment Board Cumberland County Adult Probation Cumberland County Prison