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HomeMy WebLinkAboutCP-21-CR-0002910-2010 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-2910-2010 V. : : CHARGE: 11. CORRUPTION OF MINORS : 14. INDECENT ASSAULT : WILLIAM THOMPKINS RATHBUN, III : AFFIANT: PTL. DOUGLAS HOCKENBERRY IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925(a) Ebert, J., July 12, 2012 – PROCEDURAL HISTORY On August 5, 2011, the defendant entered a guilty plea to Corruption of Minors and Indecent Assault. The same day, this Court ordered the defendant to submit to an assessment by the State Sexual Offenders Assessment Board (SOAB). The defendant was scheduled for sentence on December 13, 2011. Upon receipt of the SOAB report, this Court scheduled a sexually violent predator (SVP) hearing for October 31, 2011. On October 19, 2011, this Court granted defendant’s request for a continuation of the SVP hearing, continuing the hearing to th December 5. The SVP hearing was again rescheduled pursuant to a joint request from the th Commonwealth and the defendant. The hearing was rescheduled for December 20. th Prior to the December 20 hearing date, the Court found a misstatement in the SOAB assessment, further complicated by the fact that the Board member had previously completed an assessment of this defendant as a private clinician. Based on this discovery, the Court ordered that the assessment be conducted by another Board member, giving the SOAB another 90 days to complete the assessment. The Court scheduled the SVP hearing for March 19, 2012. On March th 19, the Commonwealth requested a continuance due to a witness being unavailable. The SVP hearing and Sentencing occurred on March 20, 2012. On March 20, 2012, this Court found the defendant to be a sexually violent predator. The defendant was subsequently sentenced, pursuant to a plea agreement he had with the Commonwealth. DISCUSSION The defendant raises two issues on appeal. The first issue is whether this Court erred in denying defendant’s request to bar the SVP hearing. The second issue is whether there was sufficient evidence to find the defendant to be a sexually violent predator. A. Conduct Of The Sexually Violent Predator Hearing Was Not Barred The defendant unsatisfactorily argues that Pa.R.Crim.P. 704 prohibits this Court from holding a SVP hearing after the expiration of 90 days from the date of the guilty plea. Pa.R.Crim.P. Rule 704 A (1), (2) states: A. Time for Sentencing. (1) Except as provided by Rule 702(B), sentence in a court case shall ordinarily be imposed within 90 days of conviction or the entry of a plea of guilty or nolo contendere. (2) When the date for sentencing in a court case must be delayed, for good cause shown, beyond the time limits set forth in this rule, the judge shall include in the record the specific time period for the extension. The Comment to this Rule provides further explanation as to what “good cause” is. Paragraph (A)(2) is not intended to sanction pro forma requests for continuances. Rather, it permits the judge to extend the time limit for sentencing under extraordinary For example, additional pre-sentence procedures may be circumstances only. required by statute. See 42 Pa.C.S. §§ 9791-9799.5 for pre-sentence assessment and 2 hearing procedures for persons convicted of sexually violent offenses. See also 42 Pa.C.S. § 9714(c) for hearing to determine high risk dangerous offender status. Because such extensions are intended to be the exception rather than the rule, the extension must be for a specific time period, and the judge must include in the record the length of the extension. A hearing need not be held before an extension can be granted. Once a specific extension has been granted, however, some provision should be made to monitor the extended time period to insure prompt sentencing when the extension period expires. Emphasis added. In the present case, this Court scheduled a SVP hearing before the expiration of the 90 days. The defendant requested the first continuance that placed the SVP hearing outside of the 90 days. Another continuance was jointly requested on behalf of the Commonwealth and the defendant. When the Court became aware that the first assessment was conducted by a Board member who had previously treated this defendant in a private setting, the Court ordered another assessment be done, with an additional 90 days to complete the assessment. After each continuance, this Court set a date certain for the SVP hearing. The final continuance request came at the urging of the Commonwealth, to which this Court continued the hearing until the next day. The Court properly monitored the rescheduling of the hearings and informed the parties that there would be no further continuance request. Pursuant to Pa.R.Crim.P. 704(A)(2) and the Comment thereto, the defendant’s argument is without merit. B. Sufficiency Of The Evidence Secondly, the defendant unsatisfactorily argues that there was insufficient evidence to find that his client met the statutory definition of sexually violent predator. His first contention rd is that the Commonwealth failed to prove the 3 element that the defendant is likely to commit such predatory sexually violent offense in the future. The defendant’s second argument is that 3 the Commonwealth’s expert failed to use any actuarial tools that would support her conclusion that the defendant is likely to re-offend. This Court’s standard of proof is whether the Commonwealth proved the defendant’s status of a sexually violent predator by clear and convincing evidence. Commonwealth v. Morgan, 16 A.3d 1165 (Pa. Super. 2011) appeal denied, 38 A.3d 824 (Pa. 2012). Under Megan’s Law, a sexually violent predator (SVP) is defined 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. 42 Pa.C.S.A. § 9792. In order to gauge the likelihood of re-offense, the assessment shall include, but not be limited to an examination of factors: (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: 4 (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. 42 Pa.C.S.A. § 9795.4(b). Contrary to the defendant’s argument that the likelihood of re-offense is an independent element of SVP classification, the caselaw is well settled that the opposite is true. See Morgan 16 A.3d 1165 at 1169-1170 (Pa. Super. 2011); Commonwealth v. Dixon, 907 A.2d 533 at 536- 537 (Pa.Super. 2006); Commonwealth v. Geiter, 929 A.2d 648, at 651-652 (Pa. Super. 2007). The Morgan Court found that no appellate court has found three distinct elements in a SVP determination. The Court found that “the Commonwealth must prove by clear and convincing evidence that the statutory definition has been satisfied, and that definition certainly includes an inquiry into the likelihood of re-offense”. 42 Pa.C.S.A. § 9792; Id at 1170 (citing, Dixon, 907 A.2d at 537, 539). While there is certainly an inquiry into the defendant’s likelihood of re- offense, it is not a distinct and separate element. Id. at 1170. Furthermore, the caselaw is clear that an inquiry into whether this specific defendant is likely to reoffend is not appropriate. Id. at 1173. An actuarial instrument to predict risk has also been rejected. Id. at 1173; Commonwealth v. Fuentes, 991 A.2d 935, (Pa.Super. 2010). The statute does not burden the Commonwealth with “predict[ing] the future” by requiring absolute proof that the defendant is likely to re-offend. Nor does it require specific “tests” for individual defendant’s to perform. To the contrary, the statute provides factors upon which experts must examine to demonstrate an increased likelihood of re-offense in addition to diagnosing the 5 defendant with having a mental abnormality that makes him/her likely to engage in a predatory sexually violent offense. Id. at 1171. In the present case, Corrine Scheuneman was qualified by the Commonwealth as an expert in sexual offender assessment and evaluation. Notes of Testimony, p. 20 (hereafter N.T. __). Ms. Scheuneman testified that she first must determine if the defendant “demonstrates a mental abnormality or personality disorder that is the impetus to his offending and the lifetime condition that makes him more likely to offend over the course of his lifetime than an offender who may have committed the same offense, but does not demonstrate a mental abnormality or personality disorder.” N.T. 42. Ms. Scheuneman concluded that the defendant has a mental abnormality of pedophilia. N.T. 39, 43. She defined pedophilia as it applies to “an individual experiencing intense sexual urges, fantasies, or behaviors that involve a pre-pubescent child and occur over a six month period of time. Those urges, fantasies, or behaviors need to have been demonstrated to impair his social, occupational, or other important area of functioning. And the individual needs to be at least 18 years old before the diagnosis applies. And the target child in question needs to be at least five years younger.” N.T. 44 In making her determination, Ms. Scheuneman reviewed the statutory factors set forth in 42 Pa.C.S.A. §9795.4(b). The defendant’s offense involved two victims with multiple sexual contacts over an extended period of time. §9795.4(b)(1)(i); N.T. 27. The defendant did not exceed the means necessary to achieve the offense; however, he had easy access to the stepdaughter who is mentally disabled and he exploited her vulnerability. §9795.4(b)(1)(ii); N.T. 31. The defendant is the victims’ stepfather. §9795.4(b)(1)(iv). He used this relationship of trust and dependency to exploit the girls for his own sexual desires. N.T. 35. The victims were 6 between the ages of 8 and 15. §9795.4(b)(1)(v); N.T. 35. The one victim was “borderline mentally retarded with learning disabilities”. §9795.4(b)(1)(vii); N.T. 36. Ms. Scheuneman found no criminal history and no significance to the factors set forth in §9795.4(b)(2)(i – iii). In considering the characteristics of the defendant, as set forth in §9795.4(b)(3), Ms. Scheuneman found that the defendant sexually assaulted his stepdaughters on nearly a daily basis for a ten year time period from when they were 8 until they were about 15 years old, and the defendant was 35 years old when it started. §9795.4(b)(3)(i, iv). In making her determination, Ms. Scheuneman also interviewed the defendant. He confirmed the “intense sexual urges or fantasies or behaviors with pre-pubescent children” portion of the diagnosis. Specifically, he told her that there was a point where he stopped getting satisfaction from one of his stepdaughters, so he moved onto his other stepdaughter when she began to develop. He acknowledged that this stepdaughter was mentally disabled, and that his attraction to her lasted longer. N.T. 45. The defendant was about 35 years old, and his victims were 8 years old when the sexual assaults began. These ages are consistent with the criteria for pedophilia. N.T. 35, 38. Ms. Scheuneman further found that the defendant’s urges impaired his marriage and ultimately he lost his job because of the arrest. N.T. 47. Additionally, these urges have impaired other important areas of functioning in that he has been incarcerated and is facing more jail as well as being labeled as a sexually violent predator. N.T. 47. Mr. Scheuneman found that the defendant’s condition was acquired and is a lifetime condition, with no cure. Moreover, his condition has overridden his emotional control. Despite knowing the consequences, the defendant repeatedly engaged in sexual behavior with his 7 stepdaughters for a significant period of time. N.T. 49. For example, the defendant did not send one of the girls to school so he could satisfy his sexual interests. He risked a school official questioning him as to why he didn’t send his stepdaughter to school. N.T. 52. With regard to the question of whether this mental abnormality makes it likely that the defendant will re-offend, Ms. Scheuneman found that the defendant is a sexually deviant 1 offender, who began developing those sexually deviant interests as a 13 year old. N.T. 49. His sexually deviant behaviors with children lasted for at least a ten year period. N.T. 49. The presence of paraphilia is associated with greater sexual deviance and a greater likelihood of re- offending. N.T. 40. The defendant’s sexual preoccupation or sexual hyper-arousal is associated with a higher risk of recidivism. N.T. 40. Offending victims in multiple age and groups and developmental groups shows a higher risk. Furthermore, offending a victim in the 13 to 15 year- old range is associated with an increased risk of recidivism. N.T. 41. Interestingly, the defendant’s expert agrees with the diagnosis of pedophilia. Furthermore, he agrees that the defendant will always be a pedophile. N.T. 97. Moreover, the defendant’s expert was aware of facts admitted by the defendant, upon which the Commonwealth’s expert relied. Q: Okay. Are you aware that the defendant used a ball gag on one of his stepchildren? A: Yes. … N.T. 95 Q: Are you aware that he used a strap on dildo with one of his children? A: Yes. 1 This information came from the defendant during his interview with Ms. Scheuneman. See page 3 of 7 of SOAB assessment report. 8 Q: Are you aware that he engaged in tying up in different kinds of bondage with one of his stepchildren? A: Yes. … N.T. 96 Q: You would also agree, wouldn’t you, that throughout his therapy sessions with you the defendant frequently blamed the victims for what happened? A: That happens. … N.T. 100 Q: He admitted to you, even though he said, he is not sexually attracted to other pre- pubescent girls, he admitted to being sexually attracted to both of his stepdaughters when they were pre-pubescent. Correct? A: Yes. THE COURT: What details did he share with you? Did you know that this had started with these girls being 8 or 9 years old? THE WITNESS: After he disclosed to me, I learned that, yes. THE COURT: That it went on almost daily? Contact daily? THE WITNESS: With clarity, yes. THE COURT: The specifics of what he told you, these things like showered with them, he would have the girls masturbating, were you aware of that? THE WITNESS: Yes. Q: Were you also aware that this behavior lasted for approximately a ten year time span? A: Yes, I am aware of the time span. … Q: In fact, he told you when his behavior towards Meghan no longer satisfied him, that is when he moved to Claire? A: Yes. N.T. 101. Q: And he told you he would go in to Meghan’s room at night when she was sleeping to videotape her, photograph her without her knowing? A: Yes. Q: And he would try to catch her when she was coming out of the bathroom? 9 A: Yes. N.T. 103. Based on her review of the statutory factors, the defendant’s interview, and other criminal documents upon which she relied, Ms. Scheuneman opined, to a reasonable degree of professional certainty, that the defendant “demonstrates a mental abnormality that is the impetus to his offending that makes him more likely to offend over the course of his lifetime.” N.T. 50. The second finding is whether “this sexually predatory behavior that he is more likely to engage in meets the statutory definition of predatory sexual behavior.” N.T. 42. Predatory is defined as “an act directed at a stranger or at a person with whom a relationship has been initiated, established, maintained, or promoted, either in whole or in part in order to support or facilitate victimization.” N.T. 51; 42 Pa.C.S.A. §9792. In the present case, the Commonwealth’s expert found that the defendant abrogated his role as a step father to support his victimization of his daughters, where he preyed on their youth and the mental challenges of his one stepdaughter. N.T. 51. Ms. Scheuneman found to a reasonable degree of professional certainty that the defendant’s behavior did meet that criteria and conforms to the legal definition of predatory behavior. N.T. 52. Based on the above testimony, this Court found that the defendant’s diagnosis of pedophilia makes it likely for him to re-offend. The Court specifically asked the defendant’s expert “so he is always going to have a sexual addiction problem.” The expert’s answer was “yes, yes, yes.” N.T. 89. Furthermore, his behavior was predatory and his diagnosed mental abnormality makes him more likely to engage in predatory sexual violent offenses. Therefore, 10 this Court has found by clear and convincing evidence that the defendant is a sexually violent predator. By the Court, M. L. Ebert, Jr., J. District Attorney’s Office Samuel Encarnacion, Esquire Attorney for Defendant 11