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HomeMy WebLinkAboutCP-21-CR-0000316-2010 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : NO. CP-21-CR-0316-2010 : LEE WILLIAM GOLDEN : OTN: K775750-3 IN RE: SEXUALLY VIOLENT PREDATOR DETERMINATION OPINION and ORDER In this Megan’s Law case, the Commonwealth has filed a praecipe which seeks a determination that the defendant in the captioned matter, Lee William Golden, is a sexually violent predator. On January 13, 2010, Defendant was charged with, among other things, Involuntary Deviate Sexual Intercourse, a violation of 18 Pa. C.S. §3123(a)(7). Defendant pled guilty to the charge of Involuntary Deviate Sexual, and the case was thereafter referred to the Pennsylvania Sexual Offender Assessment Board for purposes of an assessment as to whether Defendant should be classified as a sexually violent predator. (Order of Court, In Re: Guilty Plea, Oct. 29, 2010). Based upon an affirmative response from the Board, the Commonwealth filed a praecipe for a hearing on the issue, which was held on September 15, 2011. (Commonwealth’s Praecipe Pursuant to 42 Pa.C.S.A. §9795.4(e), filed Feb. 8, 2011). At the hearing, the Commonwealth presented the testimony and report of Robert M. Stein, Ph.D., a member of the Pennsylvania Sexual Offenders Assessment Board, who qualified as an expert in the treatment and diagnosis of sexually violent predators. (Notes of Testimony, 4, Hearing, In Re: Sexually Violent Predator hearing, Sept. 15, 2011 (hereinafter N.T. __)). A copy of Dr. Stein’s report pertaining to Defendant was placed into the record and, other than two modifications explained at the hearing, Dr. Stein testified consistently with its contents. (Commonwealth’s Ex. 1). Defendant presented the testimony and report of his own expert, Stanley E. Schneider, Ed.D, who was also qualified as an expert in the treatment and diagnosis of sexually violent predators. (N.T. 4). 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 disorder, is subject to lifetime registration requirements. 42 Pa. C.S.A. § 9795.1.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.” 42 Pa. C.S.A. § 9792. Section 9792 also 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.” 42 Pa.C.S.A. § 9792. 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. Haughwout, the Superior Court stated: [W]e strongly recommend that the trial courts present specific findings of fact regarding the findings necessary for a SVP determination as defined 2 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 Megan’s Law II provides 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. 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. 3 In the present case, the male victim, S.D.B., was approximately 8 to 9 years of age at the time the sexual contact with Defendant began. (N.T. 11). Defendant was 34 years of age, and the victim was a step-nephew. (N.T. 8-11) (Defendant was the victim’s stepfather’s brother). Between January 1, 2002 and September 30, 2009, Defendant performed oral sex on the victim, and he attempted to make the victim perform oral sex in return. (In Re: Guilty Plea Proceedings, 6-7, Oct. 29, 2010 (herein after “Guilty Plea Proceedings, __”)). The victim, however, would often turn his head away and not comply with Defendant’s requests. (Guilty Plea Proceedings, 7). Most of the incidents occurred in a bedroom and at nighttime while the rest of the house was asleep. (Guilty Plea Proceedings, 7). On October 22, 2009, Defendant was interviewed by the Pennsylvania State Police and did state that he had put the victim’s penis into his mouth on more than one occasion. (Guilty Plea Proceedings, 7). Defendant admitted that often he had been drinking heavily at the time these events occurred. (Guilty Plea Proceedings, 7). 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 predator, the following additional findings were discussed at the hearing and are found by this court as well: Victim characteristics: The only victim in this case was a male who was approximately 8-9 years of age when the sexual contact began. The offenses took place over 7 years; however, the record is unclear with respect to how many instances of sexual contact occurred over that time period. The Affidavit of Probable Cause attached to the Criminal Complaint indicates that in an interview with the State Police, Defendant stated that he could only remember 3 incidents. When told that the victim was describing more incidents, however, Defendant stated that it was possible that there were more because he may have been too intoxicated to recall. (See N.T. 7; N.T. 25). Means necessary to commit offense: Both experts agreed that Defendant’s actions in the commission of the above-described offenses did not exceed the means necessary to achieve the offense. (N.T. 7; N.T. 25). Nature of sexual contact: The sexual contact included oral sex and fondling of the victim; however, the frequency of that contact is not known with certainty. 4 Defendant performed and requested these acts of the victim at the home where the victim resided. (N.T. 7). Relationship to the victim: S.D.B. was a step-nephew of Defendant, and Defendant was the victim’s stepfather’s brother. (N.T. 8). Age of the victim: The victim was 8-9 to 14 years of age when the sexual contact began, and, thus, was unable to give legal consent to the sexual acts. Dr. Stein indicated that a portion of the sexual incidents occurred when the boy was prepubescent, and this finding is consistent with a diagnosis of pedophilia. (N.T. 9). Display of unusual cruelty: Both experts agreed that there was no indication that Defendant displayed unusual cruelty in the commission of the offenses. (N.T. 9; N.T. 25). Mental capacity of the victim: There is no indication that the victim has any grossly impaired mental capacity; however, the record does indicate that the victim does have an individualized education plan and also may have committed a sex offense during the time that he was victimized by Defendant. (N.T. 9). Prior offense history: Defendant’s criminal history includes one prior DUI. (N.T. 27). Defendant was also recently charged with a sex crime, to which he entered a plea of nolo contendere. Completion of prior sentences: The record indicates that Defendant has a history of revocation of ARD. (N.T. 10). Dr. Stein concluded that, while this factor may not be relevant to sex offending, it may be relevant to a problem with alcohol. (N.T. 10). Age of the individual: Defendant was between the ages of 34 and 41 during the time in which the sexual contact occurred. Dr. Stein indicated that those ages would be consistent with sexual deviance. (N.T. 11). Use of illegal drugs: Dr. Schneider testified that Defendant has a long history of polysubstance use, abuse and dependence. Furthermore, both experts agreed that Defendant reported the use of alcohol, marijuana, heroin, cocaine, and opiates. (N.T. 24). Mental illness, mental disability, or mental abnormality: Dr. Schneider testified that Defendant informed him that he had been diagnosed with attention deficient hyperactivity as well as a bipolar disorder, and also that Defendant was medicated for those conditions. (N.T. 23-24). Additionally, Dr. Schneider testified that Defendant stated that he had once attempted suicide, but he had never been admitted into any inpatient psychiatric clinics, nor had he participated in any outpatient mental health treatment. 5 Finally, it was the opinion of both experts that Defendant met the criteria for a diagnosis of pedophilia. (N.T. 14; N.T. 27). The experts agreed that this diagnosis is warranted because of the course of conduct which occurred and took place for a six- to seven-year period. The experts disagreed, however, as to whether that condition would necessarily override Defendant’s emotional or volitional control so as to pose a risk of reoffending. As such, the experts disagreed as to whether Defendant met the definition of a sexually violent predator contained in Section 9792. After thorough review of the reports and testimony presented at the hearing, we find that the Commonwealth has not proven by clear and convincing evidence that Defendant is likely to engage in predatory sexually violent offenses. That Defendant had only one victim in this case suggests a lesser likelihood that he will reoffend. Furthermore, Defendant did not exceed the means necessary to achieve the offense with the victim, there was no indication of any unusual cruelty, and Defendant’s criminal history does not suggest that he is likely to engage in predatory 1 sexually violent offenses. While there is sufficient evidence to support a diagnosis of pedophilia, the record also indicates that Defendant did have access to, and an opportunity to engage in, that type of behavior with other potential victims, and to date there have been no reports of unacceptable or inappropriate behavior between Defendant and other minors. Additionally, Defendant is currently 43 years of age and is set to begin a jail sentence of 8 to 20 years. We accept as credible Dr. Schneider’s testimony that research suggests that the recidivism rate reduces as men age, and also that Defendant does not present any evidence of any sexual entitlement which would make him likely to reoffend. Nothing in the record indicates that 1 We do not find Defendant’s nolo contendere plea to be inconsistent with this finding. That plea involved certain facts which contained a significant overlap of facts and testimony with the case sub judice. We are satisfied that Defendant’s nolo contendere plea is not a significant factor in the present determination. 6 Defendant evidences a pro-rape or a pro-child molester attitude. As a result, we find Dr. Schneider’s opinions and conclusion to be persuasive and conclude that the Commonwealth has not met its burden, by clear and convincing evidence, of showing that Defendant is a sexually 2 violent predator as defined by Megan’s Law II. For the foregoing reasons, we decline to classify Defendant as a sexually violent predator, and the following order will be entered. ORDER AND NOW, this day of October, 2011, upon consideration of the Commonwealth’s Praecipe Pursuant to 42 Pa. C.S. §9795.4(e), following a hearing held on September 15, 2011, and after careful consideration of the testimony adduced therein, the Court hereby declines to classify the defendant as a sexually violent predator. Sentencing herein is set for Tuesday, November 8, 2011, at 1:30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, Kevin A. Hess, P.J. 2 Despite our findings in this case, Defendant will be serving a lengthy prison sentence, and will also be required to register with the Pennsylvania State Police for many years to come. 7 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : NO. CP-21-CR-0316-2010 : LEE WILLIAM GOLDEN : OTN: K775750-3 IN RE: SEXUALLY VIOLENT PREDATOR DETERMINATION ORDER AND NOW, this day of October, 2011, upon consideration of the Commonwealth’s Praecipe Pursuant to 42 Pa. C.S. §9795.4(e), following a hearing held on September 15, 2011, and after careful consideration of the testimony adduced therein, the Court hereby declines to classify the defendant as a sexually violent predator. Sentencing herein is set for Tuesday, November 8, 2011, at 1:30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, Kevin A. Hess, P.J. Christylee Peck, Esquire Sr. Assistant District Attorney Michael Halkias. Esquire Deputy Public Defender :rlm