Loading...
HomeMy WebLinkAboutCP-21-CR-0002999-2009 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CHARGE: INVOLUNTARY DEVIATE : SEXUAL INTERCOURSE : RONNIE LEE BROWN : OTN: K689917-4 : CP-21-CR-2999-2009 IN RE: SEXUALLY VIOLENT PREDATOR DETERMINATION BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., November , 2010. In this Megan’s Law case, Defendant pled guilty on May 24, 2010 to involuntary 12 deviate sexual intercourse, a felony of the first degree.This case was referred to the Pennsylvania Sexual Offenders Assessment Board for purposes of an assessment as to 3 whether Defendant should be classified as a sexually violent predator. 4 Based upon an affirmative response by the Sexual Offenders Assessment Board, 5 the Commonwealth filed a praecipe for a hearing on the issue,which was held on October 22, 2010.At the hearing, Robert M. Stein, Ph.D., a member of the Pennsylvania Sexual Offenders Assessment Board, who qualified as an expert in the field of sex 6 offender treatment and evaluation, testified on behalf of the Commonwealth pursuant to his evaluation of Defendant. A copy of Dr. Stein’s report regarding Defendant was placed 1 18 Pa. C.S. §3123(a)(7). 2 Order of Court, In re: Guilty Plea, May 24, 2010. 3 Order of Court, In re: Guilty Plea, May 24, 2010. 4 Commonwealth’s Ex. 1, admitted at Hearing, In Re: Sexually Violent Predator Determination, October 22, 2010. 5 Commonwealth’s Praecipe Pursuant to 42 Pa. C.S.A. §9795.4(e), filed August 2, 2010. 6 Notes of Testimony, 4-6, hearing, In Re: Sexually Violent Predator Determination, October 22, 2010 (hereinafter N.T. _____, Oct. 22, 2010) (citations to testimony are to a non-final transcript of the October 22, 2010 hearing and accordingly may deviate slightly from those that a final transcript would generate). 7 in the record and he testified consistently with its contents. No other testimony was presented at the hearing. For the reasons stated in this opinion, Defendant will be determined to be a sexually violent predator. STATEMENT OF LAW 8 A person convicted of a sexually violent offense as set forth in Megan’s Law II, and found to be a Sexually Violent Predator due to a mental abnormality or personality 9 disorder, is subject to lifetime registration requirements.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 a “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. 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, 7 Commonwealth’s Ex. 1. 8 Act of May 10, 2000, P.L. 74, No. 18, §3 as amended, 42 Pa. C.S. §9791 et seq. 9 42 Pa. C.S. §9795.1. 2 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. Haughwout, 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 [42 Pa. C.S. §] 9792 and the factors specified in Section 9795.4(b) which the legislature has deemed relevant. Commonwealth v. Haughwout, 2003 PA Super 26, ¶11, 816 A.2d 247, 251. Section 9795.4(b) of the Judicial Code 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. 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 re-offense. 3 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 AND APPLICATION OF LAW TO FACTS The female victim in this case, M.D., was 14 years of age at the time the sexual 1011 contact with Defendant began. Defendant was 35 years of age. According to the record, including the guilty plea colloquy in which Defendant pled guilty and uncontradicted documents reviewed by Dr. Stein in his assessment, the relevant facts supporting the Sexual Offenders Assessment Board’s conclusion that Defendant should be classified as a sexually violent predator may be summarized as follows: Defendant moved into the victim’s family’s residence in September 2006 as part 12 of an agreement with the victim’s mother. Several months after moving into the family 13 residence, Defendant told M.D. that he was falling in love with her. Defendant and M.D. started kissing, and, by December 2006, they were having sex together, both 14 vaginal and oral. The sexual contact occurred daily, “whenever the Defendant wanted 15 to.” With respect 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 10 Notes of Testimony, In re: Guilty Plea Proceedings, 3, May 24, 2010 (hereinafter N.T. _____, May 24, 2010). 11 N.T. 3, May 24, 2010. 12 N.T. 3-4, May 24, 2010. As part of the presumably informal agreement, Defendant agreed to assist the victim’s mother as an instructor in connection with her dance and ballet business. 13 N.T. 4, May 24, 2010; N.T. 20, Oct. 22, 2010; Commonwealth’s Ex. 1. 14 N.T. 4, May 24, 2010; Commonwealth’s Ex. 1. 15 N.T. 4, May 24, 2010. 4 predator, the following additional findings were made by Dr. Stein and are found by the court as well: Victim characteristics. The only victim was a 14- to 15-year-old female. The offenses took place over nearly an entire year and the victim indicated that some sexual contact occurred every day or 16 nearly every day. Means necessary to commit offense. Defendant’s actions in the commission of the instant offense did not exceed the means necessary 17 to achieve the offense. Nature of sexual contact. Sexual contact included touching, oral, 18 and vaginal penetration, with regular acts of sexual intercourse. Defendant and M.D. would perform such acts in the residence in 19 which they lived, and in Defendant’s vehicle. Relationship to the victim. M.D. was a housemate and was 20 unrelated to Defendant. Age of the victim. The victim was age 14 and, thus, unable to give legal consent to sexual activity. Dr. Stein concluded that the youth of the victim “would be consistent with a sexually deviant pathway to 21 offending.” Display of unusual cruelty. The record does not indicate that Defendant displayed unusual cruelty in the commission of the 22 offense. 16 N.T. 4, May 24, 2010; N.T. 9, Oct. 22, 2010; Com.’s Ex. 1, at 4. 17 N.T. 10, Oct. 22, 2010; Com.’s Ex. 1, at 4. 18 N.T. 4, May 24, 2010; Com.’s Ex. 1, at 4. 19 N.T. 4, May 24, 2010; N.T. 10, Oct. 22, 2010. 20 N.T. 3-4, May 24, 2010; N.T. 10, Oct. 22, 2010; Com.’s Ex. 1, at 4. 21 N.T. 4, May 24, 2010; Com.’s Ex. 1, at 4. 22 N.T. 11, Oct. 22, 2010Com.’s Ex. 1, at 4. 5 Mental capacity of the victim. There is no indication in the record 23 that the victim displayed a diminished mental capacity. Prior offense history. Defendant has a history of some criminal activity, along with a PFA that is suggestive of an antisocial pattern of 24 behavior. Completion of prior sentences. Defendant completed two prior 25 sentences for Theft by Deception. Age of the individual. Defendant was 35- to 36-years old during 26 the course of the offense, which was significantly older than the 14- 27 to 15-year old victim. The difference between Defendant’s age, and the age of the victim is consistent with a sexually deviant pathway to 28 offending. Use of illegal drugs. There is no indication that drugs or alcohol 29 were a factor in this offense. Mental illness, mental disability, or mental abnormality. Defendant self-reported a history of diagnoses of ADHD and Bipolar 30 Disorder. 23 N.T. 11, Oct. 22, 2010; Com.’s Ex. 1, at 4. 24 N.T. 11, Oct. 22, 2010; Com.’s Ex. 1, at 5. Dr. Stein did testify that Defendant’s prior offenses were suggestive of antisocial behavior, but that Defendant did not meet the criteria, outlined in DSM-IV, for a diagnosis of antisocial disorder. N.T. 11, October 22, 2010. 25 N.T. 12, Oct. 22, 2010; Com.’s Ex. 1, at 5. 26 N.T. 3, May 24, 2010; N.T. 11, Oct. 22, 2010. 27 See N.T. 3, May 24, 2010; N.T. 12-13, Oct. 22, 2010; Com.’s Ex. 1, at 5. 28 N.T. 12, Oct. 22, 2010; Com.’s Ex. 1, at 5. At the hearing, Dr. Stein testified that, “[i]t is not normal for a 36 year old to have a sexual interest in behavior in a 14 year old, and to act on that interest is not normal, it is deviant, and to do this repeatedly over the course of an 8 month period is consistent with what we would call sexual deviance.” N.T. 12, Oct. 22, 2010. 29 N.T. 13, Oct. 22, 2010; Com.’s Ex. 1, at 5. 30 N.T. 13, Oct. 22, 2010; Com.’s Ex. 1, at 5. Dr. Stein testified that he did not find the self-reported bipolar disorder diagnosis relevant to his determination in this case, because the sexual acts occurred on a consistent basis, rather than a “cyclic type of pattern.” N.T. 13, Oct. 22, 2010. 6 Finally, it was the opinion of the expert that Defendant met the criteria for a 31 diagnosis of Paraphilia, Not Otherwise Specified (NOS), due to the “lengthy and persistent pattern of sexual misconduct with a 14-year-old girl,” and the fact that the “acts 32 took p[l]ace for over 6 months on a continuous basis. Dr. Stein further testified that 33 Paraphilia, NOS, is a lifetime condition. It was the expert’s opinion that Defendant exploited the inherent power differential created by his instructor position, which made the victim “more vulnerable 34 than otherwise.” Furthermore, Dr. Stein found of substantial significance that Defendant maintained the illicit relationship “[i]n spite of knowing the potential 35 consequences to himself and/or the victim,” as he “repeatedly engaged in sexual 36 behavior with a young teen.” The expert found great significance in the “course of the 3738 relationship” and length of the relationship, even after being confronted by the 39 victim’s parents, and being told to leave the household. After leaving the house in August of 2007, Defendant gave the victim a necklace and a cell phone, and required the 40 victim to call him each night. Dr. Stein determined that Defendant’s controlling behaviors, along with the lengthy and persistent course of sexual misconduct, and a 41 “demonstrated deviant sexual interest pattern,” provided sufficient evidence for a 31 N.T. 14, Oct. 22, 2010; Com.’s Ex. 1. 32 N.T. 14, Oct. 22, 2010; Com.’s Ex. 1, at 5; see also N.T. 3, May 24, 2010. 33 N.T. 15, Oct. 22, 2010; Com.’s Ex. 1, at 5. 34 N.T. 11, 20-21, Oct. 22, 2010. 35 Com.’s Ex. 1, at 6. 36 Com.’s Ex. 1, at 6. 37 N.T. 30, Oct. 22, 2010. 38 N.T. 22, Oct. 22, 2010. 39 N.T. 17, Oct. 22, 2010; Com.’s Ex. 1, at 6. 40 N.T. 17, Oct. 22, 2010; Com.’s Ex. 1, at 6. 41 N.T. 18, Oct. 22, 2010; Com.’s Ex. 1, at 6. 7 42 “pattern of behavior that is likely to re-occur at some point.” It was the expert’s further 43 opinion that Defendant met the definition established by statute for predatory behavior. The expert also testified that he concluded with a reasonable degree of professional certainty that Defendant had Paraphilia, NOS, that he exhibited predatory behavior, and 44 that he was likely to reoffend. Based on the frequency and duration of the sexual contact, the nature of the contact, and the disparity of age between the fourteen-year old victim and 35-year old offender, Dr. Stain testified that Defendant met the criteria set 45 forth by statute to be classified as a sexually violent predator. Defendant did not present any witnesses or exhibits at the assessment hearing, or 46 deny any of the allegations set forth in the record, but did, through his attorney, vigorously cross-examine Dr. Stein and argue to the court that the evidence presented was insufficient to support the expert’s opinion. This court, however, finds Dr. Stein’s opinions to be persuasive and concludes that the Commonwealth has met its burden, by clear and convincing evidence, of showing that Defendant is a sexually violent predator as defined by Megan’s Law II. 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 will be entered: 42 N.T. 18, 20-22, Oct. 22, 2010; Com.’s Ex. 1, at 6. Dr. Stein testified that Defendant’s statement, “How do you go about not doing this to someone else,” that he made to a Children and Youth Services worker, “goes toward the lack of ability to control this sort of behavior.” N.T. 18, Oct. 22, 2010. 43 N.T. 19, Oct. 22, 2010; Com.’s Ex. 1, at 6. 44 N.T. 21, Oct. 22, 2010. 45 N.T. 21, Oct. 22, 2010; Com.’s Ex. 1 at 7. 46 Cf. Commonwealth v. Krouse, 799 A.2d 835 (Pa. Super. 2002), abrogated by Commonwealth v. Meals, 512 Pa. 110, 912 A.2d 213 (2006). Defendant’s counsel cites Krouse as requiring this court to base its SVP determination upon “only the facts that were admitted by the Defendant as opposed to the entirety of the investigation.” N.T. 25, Oct. 22, 2010. In the court’s view, however, this construction of the Krouse holding is overly broad.. 8 ORDER OF COURT AND NOW this ___ day of November, 2010, upon consideration of the Commonwealth’s Praecipe Pursuant to 42 Pa.C.S. §9795.4(e), following a hearing held on October 22, 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 Peck, Esq. Senior Assistant District Attorney Timothy M. Barrouk, Esq. 4807 Jonestown Road, Suite 148 Harrisburg, PA 17109 For Defendant Cumberland County Adult Probation (Tiffany Ryan) Sexual Offenders Assessment Board Cumberland County Prison 9 1 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CHARGE: INVOLUNTARY DEVIATE : SEXUAL INTERCOURSE : RONNIE LEE BROWN : OTN: K689917-4 : CP-21-CR-2999-2009 IN RE: SEXUALLY VIOLENT PREDATOR DETERMINATION BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., November , 2010. AND NOW this ___ day of November, 2010, upon consideration of the Commonwealth’s Praecipe Pursuant to 42 Pa. C.S. §9795.4(e), following a hearing held on October 22, 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 Peck, Esq. Senior Assistant District Attorney Timothy M. Barrouk, Esq. 4807 Jonestown Road, Suite 148 Harrisburg, PA 17109 For Defendant Cumberland County Adult Probation (Tiffany Ryan) Sexual Offenders Assessment Board Cumberland County Prison