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HomeMy WebLinkAboutCP-21-CR-0002033-2009 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, : PENNSYLVANIA : V. : CP-21-CR-2033-2009 : : CHARGE: 1. INDECENT ASSAULT; : 2. INDECENT ASSAULT; ROBERT JUNIOR WARDRICK, II : OTN: K937874-0 : AFFIANT: PTL. TIM GROLLER IN RE: SEXUALLY VIOLENT PREDATOR DETERMINATION ORDER OF COURT th AND NOW , this 14 day of June, 2011, having considered the testimony and evidence presented by both parties, the Court finds by clear and convincing evidence that Defendant is a Sexually Violent Predator. IT IS HEREBY ORDERED AND DIRECTED Accordingly, that he is classified a Sexually Violent Predator. By the Court, _____________________________ M. L. Ebert, Jr., J. Christin Mehrtens-Carlin, Esquire Senior Assistant District Attorney Dawn Cutaia, Esquire Attorney for the Defendant 44 East Philadelphia Street York, PA 17401 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, : PENNSYLVANIA : V. : CP-21-CR-2033-2009 : : CHARGE: 1. INDECENT ASSAULT; : 2. INDECENT ASSAULT; ROBERT JUNIOR WARDRICK, II : OTN: K937874-0 : AFFIANT: PTL. TIM GROLLER IN RE: SEXUALLY VIOLENT PREDATOR DETERMINATION OPINION AND ORDER OF COURT Ebert, Jr., J., June 14, 2011 – FACTS On March 9, 2010, Defendant, Robert Wardrick, 35, was found guilty after jury trial of Count 1- Indecent Assault: Unconscious Victim and Count 2 - Indecent Assault: Lack of Consent. The count of Indecent Assault – Unconscious Victim is a misdemeanor of the first degree, and the count of Indecent Assault – Lack of Consent is a misdemeanor of the second degree, per 18 Pa.C.S.A. § 3126 which provides: (a) Offense defined.—A person is guilty of indecent assault if the person has indecent contact with the complainant, causes the complainant to have indecent contact with the person or intentionally causes the complainant to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the person or the complainant and: (1) the person does so without the complainant’s consent; (4) the complainant is unconscious or the person knows that the complainant is unaware that the indecent contact is occurring; (b) Grading.—Indecent assault shall be graded as follows: (1) An offense under subsection (a)(1) is a misdemeanor of the second degree. (2) An offense under subsection (a)(4) is a misdemeanor of the first degree. 1 On April 12, 2009, the victim in this case, SR, 14 years of age at the time of the 1 incident, was attending a sleepover party at a friend’s house. Early in the party, the victim saw the Defendant for the first time when he stopped by to drop off a chair. The Defendant later came back to the apartment where the party was being held at 2 approximately 6:00 am. At that point the victim and a friend were lying on separate couches watching television. After first going upstairs, the Defendant then came back downstairs and asked the victim if she would move over so he could sit on the couch 3 and watch television. The victim stated, “sure” and moved over. A few minutes later, the victim began to fall asleep while curled up on the couch. The victim later awoke to the Defendant’s hand rubbing her vagina over top of her 4 pajama pants. When the victim looked at the Defendant, he was pretending to be 5 sleeping. Because the Defendant was lying on the couch with his head near her buttocks, the victim initially thought that the touching might have been an accident, and 6 went back to sleep. A few minutes later, the victim felt the Defendant rubbing her vagina again, this 7 time for about three or four seconds. The victim sat up and looked at the Defendant, 8 who again was pretending to be sleeping. The victim then went upstairs and told her 9 friend what had happened and called her father. 1 Sexual Offenders Assessment Board Assessment, May 17, 2010, p. 1 (hereinafter “Assessment __”) 2 Assessment 1 3 Assessment 1 4 Assessment 1 5 Assessment 1 6 Assessment 2 7 Assessment 2 8 Assessment 2 9 Assessment 2 2 Following the jury verdict, an assessment by the Pennsylvania Sexual Offenders 10 Assessment Board was ordered to determine if the Defendant meets the criteria set forth by the law to be classified as a Sexually Violent Predator, as required by 42 Pa.C.S.A. § 9791. 42 Pa.C.S.A. § 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 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. 24 Pa.C.S.A. § 9795.1(a)(1) enumerates sexually violent offenses requiring registration with the Pennsylvania State Police and includes, et alia, 18 Pa.C.S.A. § 3126 (relating to indecent assault) where the offense is graded as a misdemeanor of the first degree or higher. 42 Pa.C.S.A. § 9795.4(b) states that upon an order for assessment, a member of the Sexual Offenders Assessment Board, as designated by the administrative officer of the Board, shall conduct an assessment of the particular individual to determine if that individual should be classified as a sexually violent predator. Relevant factors to be considered in such an assessment shall include, but are not 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. 10 Assessment 1 3 (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. The Sexual Offenders Assessment Board is required to provide the assessment to the district attorney within 90 days of the order. 42 Pa.C.S.A. § 9795.4(d). The Commonwealth then has the burden of proving to the court, by clear and convincing evidence, that the individual is a sexually violent predator. Id. § 9795.4(e)(3). It is then up to the court to determine whether the individual is a sexually violent predator. See id. § 9795.4(e); See also Com. V. Baird, 856 A.2d 114, 117 (Pa. Super. Ct. 2004). The assessment of Robert Wardrick was assigned to Board member Nancy W. Einsel, M.S. Under the authority provided in 42 Pa.C.S.A. § 9795.4(e), we shall now review the specified criteria set forth in 42 Pa.C.S.A. § 9795.4(b) to determine whether Robert Wardrick is a sexually violent predator based on the findings in the Sexual Offenders Assessment Board Assessment. A hearing on this matter was held on May 18, 2011. With regard to the relevant factors which must be considered as outlined above, the Court makes the following findings: (1) (i) - Whether the offense involved multiple victims. The offense involved a single victim on a single occasion. 4 (1) (ii) - Whether the individual exceeded the means necessary to achieve the offense. The Defendant did not exceed the means necessary to gain compliance from the victim. In this case, he violated the victim while she was sleeping. (1) (iii) - The nature of the sexual contact with the victim. The Defendant fondled the vaginal area of the victim while she was sleeping. The victim was wearing pajama pants at the time, and the Defendant fondled her though her pants. (1) (iv) - The relationship of the individual to the victim. The Defendant and victim were strangers at the time of the incident apart from her seeing him briefly delivering a chair many hours prior to the sexual assault. (1) (v) - Age of the victim. The victim was a 14-year-old female at the time of the instant offense. (1) (vi) - Whether the offense included a display of unusual cruelty by the individual during the commission of the crime. There was no display of unusual cruelty in the actions of the instant offense. The Defendant’s behavior was not sadistic, but reflects sexual entitlement and compulsivity. (1) (vii) - The mental capacity of the victim. The victim is of normal intelligence with no known psychiatric deficits. She was in a vulnerable position in that she was asleep at the time of the sexual assaults. (2) (i) - The individual’s prior criminal record. The Defendant was previously convicted of a Fourth Degree Sex Offense in Baltimore, Maryland. 5 (2) (ii) - Whether the individual completed any prior sentences. The Defendant was sentenced to both incarceration and probation for his Fourth Degree Sex Offense. His term of incarceration was suspended for 8 months. This Court is unaware of how compliant the Defendant was with his term of probation. (2) (iii) - Whether the individual participated in available programs for sexual offenders. Based on the defense’s expert witness who interviewed the Defendant, the 11 Defendant has never participated in counseling or psychiatric intervention. (3) (i) - Age of the individual. The Defendant was 33 years old at the time of the incident. He has been sexually irresponsible since at least the age of eighteen and committed sexual acts that were cause for arrest in his late twenties. Paraphilic fantasies and urges are noted to diminish with advancing age, that age is generally 60. This Defendant is only 34. (3) (ii) - Use of illegal drugs by the individual. The Defendant denies any use of illicit drugs and reports that he only drinks alcohol on a social basis about twice a month. It is unknown if substance abuse is a factor in the instant offense. (3) (iii) - Any mental illness, mental disability or mental abnormality. The Defendant’s life choices reveal a pattern of sexual preoccupation to the degree that he is making deviant, irresponsible, and impulsive choices. This pattern is consistent with Paraphilic driven behavior. 11 Letter to Defendant’s attorney, dated October 19, 2010, submitted to the court October 28, 2010, pg. 7 6 (3) (iv) - Behavioral characteristics that contribute to the individual’s conduct. The Defendant’s history of having multiple children to multiple women and at least one prior conviction for a sexual offense reveal that Defendant is a sexually compulsive and promiscuous individual and has an irresponsible lifestyle and attitude. (4) - Factors that are supported in a sexual offender assessment field as criteria reasonably related to the risk of reoffense. The Defendant’s behavior is consistent with the criteria set forth in the DSM-IV- TR for Paraphilia NOS. This finding is based on the Defendant’s prior conviction which resulted from fulfillment of his sexual desires, and his sexual compulsivity evidenced by his multiple children to multiple mothers. Paraphilia tends to be chronic and lifelong. The Defendant carried out this sexual assault despite his knowledge of the potential consequences to himself and the victim, based on his criminal history. Given the existence of many recidivism factors, including his prior history of sexual assault and sexual promiscuity, the Defendant has a high likelihood of reoffending. The Court finds Board member Einsel’s professional opinion, given to a reasonable degree of professional certainty, that the Defendant suffers from a Mental Abnormality or Personality Disorder as defined in 42 Pa.C.S.A. § 9792 is credible. The Defendant’s behavior meets the definition established by statute for predatory behavior. 42 Pa.C.S.A. § 9792 defines “predatory” as: An 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. The Defendant returned to a teenage party at 6:00 a.m., orchestrated contact with the victim by asking to sit on the couch while she was going to sleep, and then waiting until 7 she was asleep fondled her vaginal area. The Defendant then attempted to prolong his opportunity to victimize her by pretending to be asleep causing the victim to believe his touch was accidental. The Court finds Board member Einsel’s professional opinion, given to a reasonable degree of professional certainty, that the Defendant meets the criteria to be classified as a Sexually Violent Predator under 42 Pa.C.S.A. § 9792 to be credible. Discussion Defendant has a prior history of sexual misconduct. He was convicted of a Fourth Degree Sex Offense in Maryland. In the present offense, the Defendant used familial and romantic relationships to gain access to a minor that he proceeded to sexually assault, resulting in his indecent assault convictions. The repeated nature of the Defendant’s sexual offenses provides strong evidence that he will continue to seek out opportunities to commit further sexual crimes. The Defendant’s prior conviction for a sexual offense and his eleven children to different mothers suggest that he suffers from the mental abnormality/personality disorder known as Paraphilia. As the Board member discussed in her assessment, those suffering from Paraphilia have a high likelihood of sexual recidivism. This recidivism has come to fruition as the Defendant has now been convicted of the present sexual offense. In his letter to the Defendant’s attorney, dated October 19, 2010, the Defendant’s expert witness, John M. Hume, M.D., J.D., refutes the Board member’s determination that the Defendant meets the statutory requirements to be classified as a sexually violent predator. Dr. Hume suggests Board member Einsel’s reliance on the 8 Defendant’s numerous children to different mothers in her determination evidences a lack of cultural sensitivity on her part. Dr. Hume opines that Defendant’s sexual and familial history need to be taken into account in light of Defendant’s different cultural background and history. Dr. Hume warns against accepting Ms. Einsel’s conclusion that Defendant suffers from Paraphilia, because the DSM-IV-TR states that “no definition adequately specifies precise boundaries for the concept of mental disorder.” Dr. Hume also notes that the Board member has totally disregarded the violence aspect of the sexually violent predator classification. However, Ms. Einsel stated in her testimony that the word “violent” in the sexually violent predator classification refers to violence inherent in all of the sexual offenses enumerated in the Act. While evaluating the testimony of witnesses, the fact finder is free to accept or reject the credibility of expert and lay witnesses alike, and may believe all, part, or none of the evidence. Nemirovsky v. Nemirovsky, 776 A.2d 988, 993 (Pa. Super. Ct. 2000) (holding that the trial court was free to reject the credibility of a witness whose testimony the court did not find persuasive or credible). While the Court here does not go as far to say that Dr. Hume, a well-qualified expert, is not credible, it does consider Dr. Hume’s criticism of the Board member’s assessment unpersuasive. Cultural sensitivity aside, this Defendant revealed his true attitude toward women when he stated to Dr. Hume “I 12 can get a woman anytime I want.” Dr. Hume’s assertion that the Board member lacked cultural sensitivity in her assessment does not change this Court’s opinion that the Defendant here qualifies as a sexually violent predator. Additionally, the defense expert’s reliance on what he considers to be the fluidity of the boundaries of mental disorder does not alter our decision that Defendant suffers from Paraphilia NOS. 12 Commonwealth’s Exhibit 3, Dr. Hume’s report to Attorney Cutaia, p. 2. 9 Conclusion The legislature has declared the following finding and declaration of policy: These sexually violent predators pose a high risk of engaging in further offenses even after being released from incarceration or commitments and that the protection of the public from this type of offender is a paramount governmental interest. 42 Pa.C.S.A. § 9791 (a)(2). In July 2004, this Defendant was convicted of a Fourth Degree Sexual Assault in Baltimore, Maryland and received a nine month sentence, eight months of this sentence was suspended, followed by one year, six months probation. Now in 2009, this Defendant indecently assaulted an unconscious 14-year-old girl who was attending a sleepover at a friend’s house. During the occurrence of this incident, this Defendant pretended to be asleep, leading the victim to believe the touching was unintentional and thereby facilitating his opportunity to sexually molest her again. This Defendant is the type of offender the Legislature sought to protect the public from when it passed 42 Pa.S.C.A. § 9791. Considering all of the evidence, we are satisfied that the Commonwealth has proven by clear and convincing evidence that Robert Junior Wardrick, II, is a sexually violent predator under 42 Pa.C.S.A. § 9795.4. ORDER OF COURT th AND NOW , this 14 day of June, 2011, having considered the testimony and evidence presented by both parties, the Court finds by clear and convincing evidence that Defendant is a Sexually Violent Predator. 10 IT IS HEREBY ORDERED AND DIRECTED Accordingly, that he is classified a Sexually Violent Predator. By the Court, _____________________________ M. L. Ebert, Jr., J. Christen Mehrtens-Carlin, Esquire Senior Assistant District Attorney Dawn Cutaia, Esquire Attorney for the Defendant 44 East Philadelphia Street York, PA 17401 11