Loading...
HomeMy WebLinkAboutCP-21-CR-0002442-2008 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CHARGES: (1) INDECENT ASSAULT : (2) CORRUPTION OF MINORS : CHRISTOPHER : KENNETH STRUCHEN : OTN: K827583-1 : CP-21-CR-2442-2008 IN RE: SUPPLEMENTAL OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., July 15, 2010. In this Megan’s Law case in which Defendant pled guilty to indecent 1 assault and corruption of minors, and was determined by the court to be a 2 sexually violent predator, he has filed a direct appeal to the Pennsylvania 3 Superior Court, challenging two findings with respect to the sexually violent 4 predator determination. Specifically, the bases for the appeal have been expressed in Defendant’s statement of errors complained of on appeal as follows: 1. The Court’s Finding of Fact that the Defendant had sexual relations with the victim starting prior to the child’s first birthday until the victim reached the age of five was not proven by clear and convincing evidence. 2. The Court erred in adopting the diagnosis by the SAOB evaluator of the Defendant as Pedophilia, non-exclusive type, and this diagnosis was necessary to the conclusion that Defendant was a Sexually Violent 5 Predator. This court’s determination, following a hearing, that Defendant met the criteria for a sexually violent predator was accompanied by an opinion which set 6 forth the rationale for the determination. The present opinion, written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), is intended to amplify the 1 Order of Court, March 24, 2009; N.T. 4-5, Guilty Plea Colloquy, March 24, 2010. 2 Opinion and Order of Court in re: Sexually Violent Predator Determination, April 26, 2010. 3 Notice of Appeal, filed May 26, 2010. 4 See Defendant’s Concise Statement of the Errors Complained of on Appeal, filed July 2, 2010. 5 Defendant’s Concise Statement of the Errors Complained of on Appeal, filed July 2, 2010. 6 Opinion and Order of Court, in re: Sexually Violent Predator Determination, April 26, 2010. earlier opinion with respect to the two particulars raised by Defendant in his statement of errors complained of. DISCUSSION As noted in the earlier opinion, the male victim in this case, whose date of birth was January 27, 2003, was the biological son of Defendant, who was born on 7 May 12, 1981. By his own admission, before the child was one year old Defendant was “engaging in a variety of different sexual activities with the 89 child,” including oral sex. In May of 2008, at the age of five, the child revealed for the first time that “his father was doing bad things to him and made reference 10 to oral sex.” Among the findings of fact made by the court following a hearing on the issue of whether Defendant should be classified as a sexually violent predator were the following: Victim characteristics. The victim is the biological son of Defendant. The victim was less than one year old when the instant offenses began and 11 was five years old when they ceased. Nature of sexual contact. Mr. Struchen performed oral sex on the victim and fondled the victim’s penis over a time span of approximately 12 four years. Mental illness, mental disability or mental abnormality. Mr. Struchen was diagnosed with a mental abnormality. Specifically, he was diagnosed 13 with Pedophilia, non-exclusive type. Factors tending to support the finding by the court as to the time span of the sexual abuse of the victim by Defendant included the following: (1) the admission of Defendant as to the origin in time of the sexual abuse, when the victim was less 7 Opinion and Order of Court, April 26, 2010, at 3-4. 8 N.T. 4-5, Guilty Plea Colloquy, March 24, 2009. 9 Criminal Complaint, Affidavit of Probable Cause. 10 N.T. 4-5, Guilty Plea Colloquy, March 24, 2009. 11 Opinion and Order of Court, April 26, 2010, at 4. 12 Opinion and Order of Court, April 26, 2010, at 4. 13 Opinion and Order of Court, April 26, 2010, at 5. 2 than a year old; (2) the revelation by the child at the age of five that he was at that time being subjected to sexual activities by Defendant, and (3) the opinion of an expert in the area of child abuse that the child’s subjection to abuse by Defendant 14 had been of an extended duration, supported by information (a) that at the age of 15 two the victim was asking his mother to “suck his pee pee,” (b) that the victim 16 had eventually become “very sexualized,” was discovered performing fellatio 1718 upon his younger brother, and said that his father had taught him, and (c) that Defendant had threatened the victim with jail if he disclosed their activities, at a 19 time when the victim had obviously reached the age of verbal comprehension. Nancy W. Einsel, MS [Masters of Science in Counseling], CCMHA [Clinically Certified Mental Health Counselor], LPC [Licensed Professional Counselor], a nine-year member of the Pennsylvania Sexual Offenders Assessment Board and an expert in the field of sexual offender treatment and evaluation, testified, inter alia, as follows at the sexually violent predator hearing: A . . . Mr. Struchen admitted that, in fact, he first touched the boy when he was under age 1. The boy is saying that it has happened many times. The likelihood of him remembering prior to age one is pretty small. . . . In addition to that, it is very common for little kids to begin to act out what is done to them. It is not normal for children to have sexual play to the extent that he and his siblings had. That is just out of the norm of sexual development in kids. . . . That indicates to me pretty clearly that this had been going on for a time, and we know exactly when it began because Mr. Struchen was able to admit that he touched him prior to age 1. 14 Commonwealth’s Exhibit 1, at 1-2. 15 N.T. 60, Sexually Violent Predator Hearing, April 15, 2010. 16 N.T. 61, Sexually Violent Predator Hearing, April 15, 2010. 17 N.T. 12-14, Sexually Violent Predator Hearing, April 15, 2010; Commonwealth’s Ex. 1, at 1. 18 N.T. 12, 26-28, Sexually Violent Predator Hearing, April 15, 2010; Commonwealth’s Ex. 1, at 1. 19 N.T. 11-12, 31, Sexually Violent Predator Hearing, April 15, 2010; Commonwealth’s Ex. 1, at 1. 3 Q Why do you say . . . that you thought it happened for 4 years? You started talking about when it started. A He was found out at age 5. The little boy indicated that it had been going on recently, and that it had happened many times. So from age 1 to age 5, that is where I get the 4 years. Exactly how many times within that period of time or how frequently, I don’t know, but certainly over an 20 extended period of time. * * * * A [T]his child is very sexualized, and at 5 that just is not 21 . . . . average, it is not normal * * * * A . . . The boy was also under anxiety because he was told by his father, or so he said, that he was told by his father, that his father—that he would be put in jail and not be ever able to get out, in fact, if he ever 22 told about what Mr. Struchen was doing . . . . * * * * A . . . . What the little boy indicated that Mr. Struchen did was, in fact, that he touched his penis and his butt. When he was asked about it at the Children’s Resource Center, he made a hand movement that looked like a masturbating touch. That is also a part of the sexual play the little boy was doing, which was why this instant offense was even disclosed. He was caught in sexual play with his little brother and sister, I believe, and they were playing a game, and, in fact, they were performing oral sex on one another, 23 as well as masturbatory touching with his 3 year old brother. * * * * A . . . It is not likely that a less than one year old boy at age 5 is going to be describing one incident before he was one year old and acting 24 out sexually because of that incident. * * * * A [A]s I am reading this [what the child told an interviewer], he touches my pee pee and my butt, and that when he’s done it, that it happens at his father’s house. And smacks is plural, referring to more than one time. It is plural. Q So nowhere in there does the victim say he’s done this to me many times or he’s done this to me over a period of 4 years? 20 N.T. 13-14, Sexually Violent Predator Hearing, April 15, 2010. 21 N.T. 61, Sexually Violent Predator Hearing, April 15, 2010. 22 N.T. 11-12, Sexually Violent Predator Hearing, April 15, 2010. 23 N.T. 12, Sexually Violent Predator Hearing, April 15, 2010. 24 N.T. 45, Sexually Violent Predator Hearing, April 15, 2010. 4 A Oh, definitely over a period of time. It was the plural 25 implication of his words. * * * * Q . . . [The child’s mother] indicated that [the child] told her— asked her to suck his pee pee when he was age 2, and that is when she 26 began to suspect he was being sexually abused. * * * * Q . . . My question to you is from the documents that you looked at, what you already talked about, the Children’s Resource Center report, the report of the mother of him saying that he was asking him—or her to suck his pee pee when he was 2, from him talking about the Defendant touching his pee pee in the present sense when he’s 5, do all of those factors indicate to you this occurred over a longer period of time than 6 months. 27 A Absolutely. I don’t have any doubt. Factors tending to support the finding by the court that Defendant suffered 28 from a mental abnormality in the form of pedophilia, non-exclusive type, included the opinion of the Commonwealth’s aforesaid highly-qualified expert, as represented by the following excerpts from her testimony at the sexually violent predator hearing: . . [I]f you can go into what your conclusion was now, Q . please, about his mental abnormality or personality disorder? Struchen A I concluded with the information that I had that Mr. clearly meets the criteria for pedophilia, nonexclusive type. That means that in effect he also has interests in age appropriate individuals as well as prepubescent children. I concluded that because he himself has admitted that prior to or sexually touching this son of age one he was sexually active with— his, and the actions of the son, as well as the son’s report from that 29 time, indicated that it was ongoing. * * * * Q Is it your opinion, just to be clear for the record, that the Defendant suffers from pedophilia? 25 N.T. 49, Sexually Violent Predator Hearing, April 15, 2010. 26 N.T. 50, Sexually Violent Predator Hearing, April 15, 2010. 27 N.T. 62, Sexually Violent Predator Hearing, April 15, 2010. 28 N.T. 27, 43, Sexually Violent Predator Hearing, April 15, 2010; Commonwealth’s Ex. 1, at 4. 29 N.T. 27, Sexually Violent Predator Hearing, April 15, 2010. 5 30 A Absolutely. In her report, the expert expressed her opinion and the rationale for it as follows: The [American Psychiatric Association’s] diagnostic criteria for Pedophilia in the Diagnostic Statistical Manual, Fourth Edition, Text Revision (DSM-IV-TR) mandate recurrent intense sexually arousing fantasies, sexual urges or behaviors involving sexual activity with a prepubescent child or children (generally age 13 or younger). These urges, behaviors or fantasies must occur over a period of at least 6 months. For a diagnosis of Pedophilia, the person must also have acted on these sexual urges, or the sexual urges or fantasies have caused marked distress or interpersonal difficulty. Additionally, the person must be at least age 16 and at least 5 years older than the child or children involved in the 31 fantasies, urges or behaviors. It is the opinion of this board member that Christopher Struchen meets the criteria set forth in the DSM-IV-TR for Pedophilia, non-exclusive type. This opinion is based on the following:  Mr. Struchen engaged in sexual contact with his >1 to 5-year-old son. The sexual contact began in 2003 and continued until the offending was disclosed in 2008.  Mr. Struchen was approximately age 22 to 26 at the time of the sexual contact.  The sexual contact continued despite Mr. 32 Struchen’s fear of disclosure. For the reasons expressed in the court’s initial opinion dated April 26, 2010, as elaborated upon herein, it is believed that the court’s classification of Defendant as a sexually violent predator was supported by clear and convincing evidence. BY THE COURT, _________________ J. Wesley Oler, Jr., J. 30 N.T. 34, Sexually Violent Predator Hearing, April 15, 2010. 31 According to the Commonwealth’s expert, these criteria were in the nature of guidelines as opposed to absolute prerequisites for such a diagnosis. N.T. 43-44, Sexually Violent Predator Hearing, April 15, 2010. Whether viewed as guidelines or absolute prerequisites, she was of the opinion that the criteria were met in Defendant’s case. N.T. 23, Sexually Violent Predator Hearing, April 15, 2010. 32 Commonwealth’s Ex. 1, at 4. 6 Matthew Smith, Esq. Chief Deputy District Attorney Taylor P. Andrews, Esq. Chief Public Defender 7