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HomeMy WebLinkAboutCP-21-CR-0002100-2011 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : ANDRE LOUIS SMITH : CP-21-CR-2100-2011 IN RE: SEXUALLY VIOLENT PREDATOR DETERMINATION OPINION AND ORDER OF COURT Masland, J., August 24, 2012:-- I. Facts On February 22, 2012, Andre Louis Smith (Defendant), entered a plea of 1 guilty to the charge of involuntary deviate sexual intercourse with a child, in full satisfaction of eleven other sex-related charges. 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 2 violent predator. The assessment of the Defendant was assigned to Board Member Robert M. Stein, Ph.D., based on the assessment the Board submitted 3 an affirmative response regarding the Defendant, resulting in the Commonwealth’s praecipe for a hearing on the issue. A hearing was held on August 13, 2012, 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. 1 18 Pa.C.S. § 3123(a)(7). 2 Order of Court, In re: Defendant Pleads Guilty, February 22, 2012. 3 Commonwealth’s Exhibit 1 admitted at hearing, In re: Sexually Violent Determination, August 13, 2012. CP-21-CR-2100-2011 I. 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. 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 -2- CP-21-CR-2100-2011 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. (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. -3- CP-21-CR-2100-2011 (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. II. 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 Defendant is a sexually violent predator based on the findings in the Board’s assessment. With 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. The offense involved a single victim, which suggests lesser risk taking or learned interest. (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. -4- CP-21-CR-2100-2011 (1)(iii) –The nature of the sexual contact with the victim. The sexual contact with the victim involved repeated acts of sexual intercourse commencing when she was age nine or ten through age fourteen, which is consistent with deviate sexual interest. (1)(iv) – The relationship of the individual to the victim. The victim is the daughter of Defendant’s girlfriend. (1)(v) – Age of the victim. The victim was age nine or ten when the acts began and was therefore unable to give her consent. Additionally, the first act was behaviorally non- consenting, which is associated with Pedophilia. (1)(vi) – Whether the offense included a display of unusual cruelty by the individual during the commission of the crime. There was no indicationof unusual cruelty. (1)(vii) – The mental capacity of the victim. Dr. Stein had no information regarding the victim’s 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 approximately 24 years old and the victim was nine or ten when the acts began. This is associated with Pedophilia. (3)(ii) – Use of illegal drugs by the individual . There is no reported history of illegal drug use. -5- CP-21-CR-2100-2011 (3)(iii) – Any mental illness, mental disability or mental abnormality. There is no reported mental health history. (3)(iv) – Behavioral characteristics that contributed to the individual’s conduct. Dr. Stein found no additional relevant information to report. (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 sexual interest in a child and unrelated victim are both associated with increased risk. Additionally, the court concurs with Dr. Stein’s assessment that the Defendant’s sustained sexual interest in the prepubescent daughter of his girlfriend is consistent with Pedophilia, which is a non-curable lifetime condition. Over the objection of Defendant, Dr. Stein testified to the Defendant’s inability to control his actions according to a statement made to the mother of the 4 victim that he “could not help himself.” Even in the absence of this statement from mother, the fact that the sexual acts continued for approximately five years was sufficient for Dr. Stein find that the Defendant’s condition would override emotional and/or volitional control. Counsel for the Defendant attempted to counter this finding by questioning Dr. Stein regarding an excerpt of the 5 Children’s Resource Center contact summary with the victim. Although defense counsel argued this summary showed that there were breaks in the sexual contact between the Defendant and victim, Dr. Stein contended that it indicates 4 Commonwealth’s Exhibit 1 at 5. 5 Defendant’s Exhibit 1. -6- CP-21-CR-2100-2011 that the sexual contact occurred on a regular basis. We concur. Simply because sexual contact “sometimes [did not occur] at all in a week” provides this court with little comfort. Taking an occasional week off in one’s predatory behaviors does not lessen the Defendant’s risk of reoffending or demonstrate any bona fide ability to control his actions. Although the Defendant did not present any witnesses, his attorney vigorously cross-examined Dr. Stein and argued that the evidence presented was insufficient to support his opinion. The crux of Defendant’s argument is that Dr. Stein based his assessment on evidence that exceeded the scope of admissions by the Defendant in his guilty plea colloquy. After amending its information as part of the plea agreement to add a count of involuntary deviate sexual intercourse with a child under Section 3123(a)(7) of the Crimes Code, the Commonwealth submitted the following factual basis for the plea: [The Commonwealth]: The facts are from the time of January 2006 until May of 2011, somewhere in that time, Mr. Smith was having a sexual relationship with his girlfriend’s daughter. The daughter was a minor at that time. He was having this relationship with her. It began when the victim was nine years old up until the time she was fourteen years old. The sexual intercourse occurred in a residence in Mechanicsburg, Cumberland County. This victim told the police officer that at the time she was eleven years old she had anal sexual with Mr. Smith. Mr. Smith was four or more years older than the victim and was also not married to the victim. The Commonwealth and the defendant have an agreement in this case for five to ten years. Although the facts set forth by the Commonwealth at the time of the plea were not as detailed as some of those reviewed by Dr. Stein, they clearly provide -7- CP-21-CR-2100-2011 the general basis for his assessment. The guilty plea agreement for a five to ten year sentence was based on facts that established Defendant’s five-year sexual relationship with the victim between the time she was nine until the time she was fourteen years old and included at least one incident of anal sex when she was eleven years old. Based on these facts, we find that Dr. Stein’s assessment was within the scope of the colloquy, and, therefore, Defendant’s reliance on Commonwealth v. Sanford, 863 A.2d 428 (Pa. 2004), is unavailing. We are satisfied that Dr. Stein relied upon the type of information commonly used by experts in rendering similar assessments, as contemplated by the Pennsylvania Rules of Evidence. And, “an expert witness’s opinion, when itself rendered with a reasonable degree of professional certainty, is evidence,” Commonwealth v. Fuentes, 991 A.2d 9335, 944 (Pa. Super. 2010). Furthermore, the Defendant did not contradict the information at the hearing which Dr. Stein utilized in rendering his expert opinion nor did he object to the salient facts upon which the evaluation was based when he pled guilty. Further, the nature of the contact, the length of the relationship and the ages of the parties are the most salient factors in our evaluation of Dr. Stein’s assessment. Again, because all of these factors were in the colloquy, Defendant’s protestation that Dr. Stein’s expert opinion lacks foundation is not convincing. To the contrary, we are satisfied that the credible opinion of Dr. Stein that the Defendant met the criteria set forth in 42 Pa.C.S. Section 9795.4(b) for a sexually violent predator, which was not contradicted by expert testimony to the contrary, considered in conjunction with other evidence in this case, including the -8- CP-21-CR-2100-2011 factual basis for the guilty plea, was sufficient from our perspective as factfinder, to prove by clear and convincing evidence that the Defendant was a sexually violent predator as defined by the legislature. Therefore, 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 sexual violent offenses. Accordingly, the following order will be entered: ORDER OF COURT AND NOW, this day of August, 2012, upon consideration of the Commonwealth’s praecipe pursuant to 42 Pa.C.S. § 9795.4(e), and following a hearing held on August 13, 2012, the court finds by clear and convincing evidence that the Defendant is a sexually violent predator. IT IS HEREBY ORDERED AND DIRECTED Accordingly, that Andre Louis Smith is classified a sexually violent predator. By the Court, Albert H. Masland, J. Emily R. Provencher, Esquire Assistant District Attorney Shawn M. Curry, Esquire For Defendant Probation :saa -9- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : ANDRE LOUIS SMITH : CP-21-CR-2100-2011 IN RE: SEXUALLY VIOLENT PREDATOR DETERMINATION ORDER OF COURT AND NOW, this day of August, 2012, upon consideration of the Commonwealth’s praecipe pursuant to 42 Pa.C.S. § 9795.4(e), and following a hearing held on August 13, 2012, the court finds by clear and convincing evidence that the Defendant is a sexually violent predator. IT IS HEREBY ORDERED AND DIRECTED Accordingly, that Andre Louis Smith is classified a sexually violent predator. By the Court, Albert H. Masland, J. Emily R. Provencher, Esquire Assistant District Attorney Shawn M. Curry, Esquire For Defendant Probation :saa