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HomeMy WebLinkAboutCP-21-CR-0001479-2010 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : MICHAEL EDWARD NEUMANN : CP-21-CR-1479-2010 IN RE: SEXUALLY VIOLENT PREDATOR DETERMINATION OPINION AND ORDER OF COURT Masland, J., September 2, 2011:-- I. Facts On November 17, 2010, following a three day jury trial, the Defendant was found guilty of two counts of involuntary deviate sexual intercourse (child over 1 twelve and under sixteen), one count of involuntary deviate sexual intercourse 2 (child under thirteen), one count of aggravated indecent assault (child under 345 thirteen), one count of rape of a child, one count of incest, two counts of 67 statutory sexual assault, two counts of sexual assault, two counts of aggravated 8 indecent assault (lack of consent), two counts of aggravated indecent assault 910 (child under sixteen), two counts of corruption of minors, one count of indecent 1 18 Pa.C.S. § 3123(a)(7). 2 18 Pa.C.S. § 3123(b). 3 18 Pa.C.S. § 3125(b). 4 18 Pa.C.S. § 3121(c). 5 18 Pa.C.S. § 4302. 6 18 Pa.C.S. § 3122.1. 7 18 Pa.C.S. § 3124.1. 8 18 Pa.C.S. § 3125(a)(1). 9 18 Pa.C.S. § 3125(a)(8). 10 18 Pa.C.S. § 6301(a)(1). CP-21-CR-1479-2010 1112 assault (child under thirteen), two counts of indecent assault (lack of consent), 13 and two counts of indecent assault (child under sixteen). Of the 21 aforesaid counts, 13 involved the Defendant’s biological daughter K.N. and 8 involved his step-daughter S.W. The offenses came to light on June 25, 2009, when S.W., then 18 years old, reported to the police that the Defendant forced her to have sexual intercourse. In the course of the police investigation it was determined that the Defendant began having various forms of sexual contact with S.W. when she was thirteen and included the touching of her breasts and vagina, sexual intercourse, oral sex, and anal intercourse. The Defendant also exposed S.W. to sexual devices and pornography. K.N., then 21 years of age, was also interviewed by the police and reported that the Defendant engaged in sexual contact with her from the age of five through twenty years, which included the touching of her breasts and genitals, oral sex, sexual intercourse and the use of phallic devices on the victim. Both victims testified extensively, emotionally, and credibly regarding the sexual contact perpetrated upon them by the Defendant. Essentially, the Defendant denied all of the sexual contact with both victims except for the final episode of sexual intercourse that occurred with S.W. in June of 2009, which he claimed was not only consensual, but was instigated by S.W. The jury returned guilty 14 verdicts on all counts. 11 18 Pa.C.S. § 3126(a)(7). 12 18 Pa.C.S. § 3126(a)(1). 13 18 Pa.C.S. § 3126(a)(8). 14 The Commonwealth dismissed count 9, aggravated indecent assault on a child under thirteen years of age (18 Pa.C.S. Section 3125(a)(7)), because S.W. testified the sexual contact began with she was thirteen years of age. -2- CP-21-CR-1479-2010 Following the jury verdict, the case was referred to the Pennsylvania Sexual Offenders Assessment Board (Board) for the purposes of an assessment as to whether Defendant should be classified as a sexually violent predator. The assessment of the Defendant was assigned to Board Member Robert M. Stein, Ph.D. Based on the assessment, the Board submitted an affirmative response 15 regarding the Defendant, resulting in the Commonwealth’s praecipe for a hearing on the issue. A hearing was held on August 25, 2011, at which Dr. Stein was qualified as an expert in the field of sexual offender treatment classification and recidivism. No other testimony was presented at the hearing. II. Statement of Law Pursuant to Pa.C.S. § 9795.1, a person convicted of a sexually violent offense and found to be a sexually violent predator due to a mental abnormality 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. Commonwealth’s Exhibit 1, admitted at hearing, In re Sexually Violent Determination, August 15 25, 2011. -3- CP-21-CR-1479-2010 The Board is required to provide the assessment to the District Attorney within 90 days of the order. 42 Pa.C.S. § 9795.4(d). The Commonwealth then 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). Thereafter, the court determines whether the individual is a sexually violent predator. 42 Pa.C.S. § 9795.4(e); see also Commonwealth v. Beard, 856 A.2d 114, 117 (Pa. Super. 2004). Clear and convincing evidence is evidence that is “so clear, direct, weighty, and convincing as to enable [the factfinder] to come to a clear conviction, without hesitance, of the truth of the precise facts and issue.” In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). In Commonwealth v. Haughwout, our Superior Court stated: We 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 factor specified in Section 9795.4(b) which the legislature has deemed relevant. Commonwealth v. Haughwout, 816 A.2d 247, 251 (Pa. Super. 2003). In Section 9795.4(b) of the Judicial Code the relevant factors to be considered by the Board in its assessment 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. -4- CP-21-CR-1479-2010 (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 of 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. Section 9795.4(b) is not “a mere checklist where one simply totals and compares the absence of designated factors.” Commonwealth v. Meals, 912 A.2d 213, 221 (Pa. 2006). “[T]he presence or absence of certain factors may simply suggest that the presence, or absence, of one or more particular types of abnormalities.” Id. III. Application of Law to Facts Under the authority provided in Section 9795.4(e), the court will now review the aforesaid factors to determine whether Michael Edward Neumann is a sexually violent predator based on the findings in the Board’s assessment. With -5- CP-21-CR-1479-2010 regard to the relevant factors which must be considered, the court makes the following findings, which were made by Dr. Stein as well. (1)(i) – Whether the offense involved multiple victims. Here, there are two victims, the Defendant’s daughter and step-daughter, which is an indication of a learned interest and/or greater risk-taking on the part of the Defendant. (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 victims. (1)(iii) –The nature of the sexual contact with the victim. The sexual contact with the victims included touching, oral sex both ways, penis-vagina intercourse, insertion of fingers and objects, and anal intercourse. The nature of Defendant’s contact is indication of deviance. (1)(iv) – The relationship of the individual to the victim. The victims are the biological daughter and step-daughter of the Defendant. (1)(v) – Age of the victim. At the time of the offenses, the Defendant’s daughter was between the ages of 5 and 20 and his step-daughter was between the ages of 13 and 18. At the younger ages, they were unable to give consent. The offenses committed after they became of legal age were manifestly unwanted and without their consent. -6- CP-21-CR-1479-2010 (1)(vi) – Whether the offense included a display of unusual cruelty by the individual during the commission of the crime. Although Dr. Stein noted that painful anal intercourse and insertion of objects have “cruel aspects” to them, there was no indication of any unusual cruelty, aside from the inherent cruelty of over 15 years of victimization. (1)(vii) – The mental capacity of the victim. The victims are of normal mental capacity. (2) – Prior offense history. The Defendant has no criminal history and therefore has not been required to participate in any programs for sexual offenders. (3)(i) – Age of the individual. The Defendant was between the ages of 30 and 45 during the numerous incidents with both victims who were between the ages of 5-20 and 13-18 respectively. (3)(ii) – Use of illegal drugs by the individual . There is no indication of any illegal drug use by the Defendant. (3)(iii) – Any mental illness, mental disability or mental abnormality. There is no reported history of mental illness. (3)(iv) – Behavioral characteristics that contributed to the individual’s conduct. Dr. Stein found no additional relevant information to report. -7- CP-21-CR-1479-2010 (4) – Factors that are supported in a sexual offenders assessment field as criteria reasonably related to the risk of re-offense. Dr. Stein noted that sustained sexual interest in a child is associated with increased risk and the Defendant’s involvement with multiple child victims involving multiple unwanted acts is consistent with the sexual deviance of the Defendant. Moreover, the court concurs with the expert’s assessment that the Defendant’s sustained sexual interest in his prepubescent biological daughter is consistent with Pedophilia. The acts with both victims are consistent with Paraphilia not otherwise specified (NOS), in that he maintained sexual interest in a “child or non-consenting person.” The expert noted that the Defendant’s deviance also involved wanting the victims to have children with him, attempting to have the girls touch each other sexually, using objects on them, and telling them he wanted other men to have sex with them. Dr. Stein noted that both Pedophilia and Paraphilia NOS are non-curable lifetime conditions and that Defendant’s behavior indicated an inability to control his urges to have sex with either victim. As such, the court concurs with the assessment there is “overwhelming evidence” not only of a condition that would be the impetus to sexual offending but that such offending is likely to occur again at some point in the Defendant’s lifetime. Although the Defendant did not present any witnesses or exhibits at the assessment hearing, or deny any of the allegations set forth in the record, his attorney cross-examined Dr. Stein and urged the court to find that the evidence presented was insufficient to support the expert’s opinion. Counsel argued -8- CP-21-CR-1479-2010 vigorously that the Defendant did not meet eight of the aforementioned factors. However, Dr. Stein noted, in keeping with Meals, that he does not merely add and subtract the factors to determine if a defendant qualifies as a sexually violent predator. A defendant could have several indicated factors and not qualify as a sexually violent predator or have only a few and still qualify. More important than quantity is quality. In that respect, Dr. Stein noted, and the court concurs, that the factors not possessed by the Defendant (e.g., no prior criminal history) are insignificant when compared to the sustained course of sexual abuse perpetrated by the Defendant. The Defendant also argued that there were inconsistencies in the records reviewed by Dr. Stein, which did not initially include the transcript of the court proceedings. Although Dr. Stein arrived at his conclusion before reviewing the transcript, the minor inconsistencies he noted in the transcript were not cause to change his assessment. The court concurs and notes that any minor inconsistencies that may have occurred during the three day trial paled in comparison to the consistent and credible testimony of the victims. Finally, defense counsel noted that page number three of Dr. Stein’s assessment, under the heading “observations of the defendant” reads: The absence of an interview does not preclude the Board Member’s ability to assess Mr. Neumann’s behavior throughout history for characteristics similar or dissimilar to the criteria set forth in statute defining a sexually violent predator. It is noted that Mr. Bustamante was interviewed by the Board investigator and ample information was provided in that interview. Commonwealth Exhibit 1 at 3 (emphasis added). -9- CP-21-CR-1479-2010 Counsel argued that the inclusion of the emphasized sentence indicates that the report was merely a cut and paste, perfunctory assessment by Dr. Stein. Dr. Stein noted that he does use a template for his reports and should have deleted the second sentence which referred to a “Mr. Bustamante,” but that the report was otherwise specifically related to the Defendant. The court has reviewed the full assessment by Dr. Stein meticulously and finds that it is clearly focused and solely related to the Defendant, save the singular sentence mentioning Mr. Bustamante. Furthermore, the section in question is one which calls for a standardized statement as to whether or not a defendant is interviewed by a Board investigator. In this case, the Defendant was not interviewed and Dr. Stein noted that did not preclude him from conducting the assessment. Although the error is regrettable, it is far from significant, especially in a section of the report which calls for boilerplate language. In sum, the court finds Dr. Stein’s opinions to be persuasive and concludes that the Commonwealth has proven by clear and convincing, if not overwhelming, evidence that the Defendant is a sexually violent predator. For the foregoing reasons, the court concludes that the 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: ORDER OF COURT AND NOW, this day of September, 2011, upon consideration of the Commonwealth’s praecipe pursuant to 42 Pa.C.S. § 9795.4(e), and following a -10- CP-21-CR-1479-2010 hearing held on August 25, 2011, the court finds by clear and convincing evidence that the Defendant is a sexually violent predator. IT IS HEREBY ORDERED AND DIRECTED Accordingly, that Michael Edward Neumann is classified a sexually violent predator. By the Court, Albert H. Masland, J. Christylee Peck, Esquire For the Commonwealth Vincent M. Monfredo, Esquire For Defendant :saa -11- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : MICHAEL EDWARD NEUMANN : CP-21-CR-1479-2010 IN RE: SEXUALLY VIOLENT PREDATOR DETERMINATION ORDER OF COURT AND NOW, this day of September, 2011, upon consideration of the Commonwealth’s praecipe pursuant to 42 Pa.C.S. § 9795.4(e), and following a hearing held on August 25, 2011, the court finds by clear and convincing evidence that the Defendant is a sexually violent predator. IT IS HEREBY ORDERED AND DIRECTED Accordingly, that Michael Edward Neumann is classified a sexually violent predator. By the Court, Albert H. Masland, J. Christylee Peck, Esquire For the Commonwealth Vincent M. Monfredo, Esquire For Defendant :saa