HomeMy WebLinkAboutCP-21-CR-0002319-2012
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v. :
:
KENNETH L. YORTY : CP-21-CR-2319-2012
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
Peck, J., June 20, 2014.
On September 9, 2013, Defendant pled nolo contendere to Count 1, Involuntary
Deviate Sexual Intercourse, a felony of the first degree, Count 15, Corruption of Minors,
a felony of the third degree, and Count 17, Indecent Assault, a misdemeanor of the first
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degree. As a result of the offenses for which Defendant was convicted, we referred the
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matter to the Sexual Offender Assessment Board for a Sexual Offender Assessment. A
sexually violent predator hearing was held on April 1, 2014. On April 2, 2014, we found
that Defendant “suffers from a mental abnormality or personality disorder and that he
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engaged in predatory behavior.” We thus deemed Defendant to be a sexually violent
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predator. On April 8, 2014, Defendant was sentenced at Count 1 to undergo
imprisonment in a state correctional facility for not less than six years nor more than
fifteen years, to pay a fine of $100, and to pay the costs of prosecution, at Count 15 to
undergo a period of supervised probation for five years, to run consecutively to the
sentenced imposed at Count 1, to pay a fine of $100, and to pay the costs of prosecution,
and at Count 17 to undergo a period of incarceration in a state correctional facility for not
less than six months nor more than two years, to run concurrently to the sentence
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imposed at Count 1, and to pay the costs of prosecution. On April 25, 2014, Defendant
1
Order of Court, In Re: Nolo Contendere Plea & Directed to Appear (Sept. 9, 2013).
2
Order of Court, In Re: Sexual Offender Assessment (Sept. 9, 2013).
3
Order of Court, In Re: Commonwealth’s Praecipe Pursuant to 42 Pa.C.S.A. § 9799.24(e) (April 2,
2014).
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Id.
5
Order of Court, In Re: Sentence (April 8, 2014).
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filed a Notice of Appeal. In accordance with Pennsylvania Rule of Appellate Procedure
1925(b), Defendant has filed the following concise statement of matters complained of on
appeal:
1.Did the Court err when finding the Commonwealth presented clear
and convincing evidence that Kenneth Yorty meet \[sic\] the statutory
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requirements for classification as a sexually violent predator?
This Court’s opinion in support of our Order of Court, In Re: Commonwealth’s
Praecipe Pursuant to 42 Pa.C.S.A. § 9799.24(e), is written pursuant to Pennsylvania Rule
of Appellate Procedure 1925(a).
STATEMENT OF FACTS
Dr. Robert Stein, a licensed psychologist in Pennsylvania, testified for the
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Commonwealth at Defendant’s sexually violent predator hearing. Dr. Stein has been a
member of the Pennsylvania Sexual Offenders Assessment Board (the Board) since
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1998. Dr. Stein’s Curriculum Vitae was admitted into evidence, without objection, as
Commonwealth’s Exhibit 1, and via a stipulation between the Commonwealth and
Defendant, Dr. Stein was qualified as an expert in the treatment of sexual offenders and
in sexually violent predator assessments pursuant to the statutory requirements of 42
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Pa.C.S.A. § 9799.24.
As a member of the Board, Dr. Stein conducted an assessment of Defendant and
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prepared a report with his findings. In performing his assessment, Dr. Stein reviewed “a
report from the board investigator; Court Order for the assessment; response from
defense counsel; records from the District Attorney’s Office, including police reports and
6
Notice of Appeal, filed April 25, 2014.
7
Defendant’s Concise Statement of the Errors Complained of on Appeal, filed May 15, 2014, ¶ 1.
8
Transcript of Proceedings, In Re: Sexually Violent Predator Hearing/Continued Sentencing, April 1,
2014 (Peck, J.) (hereinafter “N.T. at __”) 4.
9
N.T. at 4.
10
N.T. at 5.
11
N.T. at 6.
2
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related reports; Childline records; and records from Children and Youth Services.”
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Defendant did not participate in Dr. Stein’s assessment. Dr. Stein testified that
Defendant’s lack of participation did not impede his ability to perform the assessment
and then testified to his findings with respect to each enumerated factor of 42 Pa.C.S.A. §
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9799.24(b).
According to Dr. Stein, the offense involved multiple victims, but Defendant did
not exceed the means necessary to achieve the offense; “there were penetrative acts
involving oral sex . . . and these acts would be consistent with Pedophilia”; the victims
are a step-granddaughter and a great-granddaughter; the victims were ages 4 and 7 when
the abuse began, indicating deviant sexual interest; Defendant’s ejaculating into one
victim’s mouth “would have a cruel aspect to it”; the victims were of normal mental
capacity, although Dr. Stein opined that one victim had psychiatric complications that
were possibly the result of the abuse; Defendant has no prior criminal record and
therefore no prior sentences or any participation in a sex offender program; Defendant’s
advanced age reflected deviant sexual interest; there was no report of illegal drug use; the
several years span of Defendant’s abuse of the victims is consistent with Pedophilia; and
Defendant’s “sustained interest in a prepubescent child is associated with increased risk”
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for reoffending.
Dr. Stein further testified that Pedophilia involves a sustained sexual interest in
children under the age of 13, noting that Defendant’s abuse of one victim began when she
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was 4 and continued until she was 12, when she began to protest the abuse. Thus
according to Dr. Stein, Defendant’s Pedophilia served as the impetus for his sexual abuse
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of his victims. Additionally, Dr. Stein testified that Pedophilia, which is a mental
12
N.T. at 6.
13
N.T. at 7.
14
N.T. at 7.
15
N.T. at 7-10.
16
N.T. at 8.
17
N.T. at 11-12.
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abnormality, is not curable and that there is sufficient evidence that it is a lifetime
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condition. Defendant also “had persistent sexual urges to perform sexual acts with
victim A.M. and the second child,” and “he was unable or unwilling to control those
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urges.” Dr. Stein concluded that there was “sufficient evidence for a condition that
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overrode \[Defendant’s\] emotional and volitional control.”
Addressing the risk of reoffending, Dr. Stein testified that the risk of Defendant
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reoffending if left unsupervised with children was unacceptable. Dr. Stein based this
conclusion on the fact that Defendant’s sexual abuse of A.M. lasted many years and,
secondarily, on Defendant’s inability to discontinue his abuse of the victims even after
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being warned by family members to do so.
Based upon the above assessment, Dr. Stein found, to a reasonable degree of
professional certainty, that Defendant suffers from a mental abnormality or personality
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disorder and will likely reoffend. In particular, Defendant suffers from pedophilia.
Dr. Stein next testified about Defendant’s pattern of predatory behavior, defining
‘predatory’ as initiating, establishing, maintaining, or promoting a relationship “to
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support sexual victimization.” Defendant, according to Dr. Stein, “used various games
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and sexual stories to groom victim A.M. for continued sexual contact.” ‘Grooming,’ as
Dr. Stein defined it, is “any set of behaviors designed to break down a child’s natural
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defenses and make it easier to commit sexual assaults.” In light of Defendant’s
18
N.T. at 14.
19
N.T. at 14.
20
N.T. at 14.
21
N.T. at 15.
22
N.T. at 15.
23
N.T. at 15.
24
N.T. at 14.
25
N.T. at 15-16.
26
N.T. at 16.
27
N.T. at 16.
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grooming of his victims, Dr. Stein concluded, to a reasonable degree of professional
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certainty, that Defendant engaged in predatory behavior.
Finally, having determined that Defendant suffers from a mental abnormality,
pedophilia, and that Defendant engaged in predatory behavior, Dr. Stein concluded, to a
reasonable degree of professional certainty, that Defendant “meets the criteria to be
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classified as a sexually violent predator.”
Defendant also testified. He testified that the games Dr. Stein referred to were
initiated by A.M., including a guessing game where A.M. placed Defendant’s hand on
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her bare vagina and he was to guess what part of her body he was touching. Defendant
claimed that A.M. usually placed his fingertips on her nose or her tongue or “whatever”
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when they played the guessing game. He testified that he “gave her a talking to” after
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that, telling her that she should not let any boys touch her there. He also testified that it
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was not his intention to touch A.M.’s vagina and that A.M. thought it was funny.
Regarding the stories he would tell A.M., Defendant testified that, in the
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beginning, they were ghost stories and stories about kids being lost in the woods. When
A.M. got older, according to Defendant, she began babysitting for one of her aunts, and,
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around that same time, she began asking him to tell her stories about pregnant kids.
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Defendant testified that the stories always ended negatively. He also testified that at the
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N.T. at 16.
29
N.T. at 16.
30
N.T. at 33.
31
N.T. at 33.
32
N.T. at 33.
33
N.T. at 33.
34
N.T. at 35.
35
N.T. at 35, 37.
36
N.T. at 37.
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time he began telling her stories about pregnant kids she already “knew what sex was all
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about . . . because . . . she had run into porn on somebody else’s computer.”
Defendant testified that on two occasions A.M. stuck her tongue in his mouth
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when he tried to give “her a little peck on the lips.” Defendant thought she was “playing
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games,” and he “just pulled away from her.”
Defendant further testified that A.M. would refuse to get dressed after she took a
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shower. When asked how old A.M. was when she refused to get dressed, Defendant
testified that she was in “first, second, third, fourth grade, somewhere in there . . . maybe
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first, second grade . . . .” While Defendant testified that he would ask her to get dressed,
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he “didn’t push it.”
On cross-examination, Defendant reiterated that he talked to A.M. about putting
his hand on her vagina, telling her, “you shouldn’t let boys touch you like that or me – I
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didn’t necessarily say me.” When asked if he told A.M.’s mother about the various
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incidents, he said he did not. Defendant was also asked if he remembered telling the
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police that A.M. had grabbed his penis a few times. He responded, “I don’t remember
telling them that – I didn’t tell them. She might have, I don’t know, I don’t remember any
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more.” Concluding Defendant’s cross-examination, the Commonwealth asked
Defendant whether someone who “molests two kids over an 8 year period of time when
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they are under 13” has a problem. Defendant responded, “Yeah, probably.”
37
N.T. at 37.
38
N.T. at 38.
39
N.T. at 38.
40
N.T. at 36.
41
N.T. at 36.
42
N.T. at 36.
43
N.T. at 43.
44
N.T. at 43.
45
N.T. at 45.
46
N.T. at 45.
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N.T. at 46 (emphasis added).
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DISCUSSION
Defendant challenges this Court’s finding that the Commonwealth proved by clear
and convincing evidence that Defendant is a sexually violent predator in accordance with
42 Pa.C.S.A. § 9799.24. For the following reasons, we find no error in our determination.
The Commonwealth bears the burden of proving by clear and convincing evidence
that a defendant is a sexually violent predator. 42 Pa.C.S.A. § 9799.24(e)(3). “The clear
and convincing standard requires evidence that is so clear, direct, weighty, and
convincing as to enable the trier of fact to come to a clear conviction, without hesitancy,
of the truth of the precise facts in issue.” Commonwealth v. Bishop, 936 A.2d 1136, 1141
(Pa. Super. 2007). An individual is a sexually violent predator if he is convicted of one of
the enumerated offenses found at 42 Pa.C.S.A. § 9799.14 and “is determined to be a
sexually violent predator under section 9799.24 (relating to assessments) due to a mental
abnormality or personality disorder that makes the individual likely to engage in
predatory sexually violent offenses.” 42 Pa.C.S.A. § 9799.12. “The determination of
whether an individual should be classified as a\[\] \[sexually violent predator\] is governed
by examination” of the factors found at 42 Pa.C.S.A. § 9799.24(b). Commonwealth v.
Martz, 926 A.2d 514, 522 (Pa. Super. 2007). Those factors are:
(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.
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(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 filed
as criteria reasonably related to the risk of reoffense.
42 Pa.C.S.A. § 9799.24(b).
In the present matter, Dr. Stein, a licensed psychologist and an expert in the
treatment of sexual offenders and in sexually violent predator assessments, presented
testimony with respect to the 15 factors set forth above. We found his testimony to be
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credible. Although Dr. Stein did not find all 15 factors to be present, he did find that:
the offense involved multiple victims; “there were penetrative acts involving oral sex . . .
and these acts would be consistent with Pedophilia”; the victims are a step-granddaughter
and a great-granddaughter; the victims were ages 4 and 7 when the abuse began,
indicating deviant sexual interest; Defendant’s ejaculating into one victim’s mouth
“would have a cruel aspect to it”; Defendant’s advanced age reflected deviant sexual
interest; the several years span of Defendant’s abuse of the victims is consistent with
pedophilia; and Defendant’s “sustained interest in a prepubescent child is associated with
increased risk” for reoffending. Dr. Stein also testified that there was “sufficient evidence
for a condition that overrode \[Defendant’s\] emotional and volitional control” and that the
risk of Defendant reoffending if left unsupervised with children was unacceptable.
Based upon the above assessment, Dr. Stein concluded that, due to Defendant’s
pedophilia, a mental abnormality, his pattern of predatory behavior, which included
various games and sexual stories used to facilitate his sexual assaults of A.M., and
Defendant’s increased risk of reoffending, Defendant met the statutory criteria for being
designated a sexually violent predator.
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By contrast, we did not find Defendant’s testimony to be credible.
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We thus found that the Commonwealth had met its burden of proving by clear and
convincing evidence that Defendant is a sexually violent predator as defined in 42
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Pa.C.S.A. § 9799.14.
CONCLUSION
This Court concludes that it properly designated Defendant a sexually violent
predator. The issue raised by Defendant on appeal, therefore, is without merit.
BY THE COURT,
___________________________
Christylee L. Peck, J.
Christin Mehrtens-Carlin, Esquire
Senior Assistant District Attorney
Michael Halkias, Esquire
Deputy Public Defender
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Additionally, Defendant was convicted of violations of 18 Pa.C.S.A. §§ 3123(a)(6), 6301(a)(1)(ii), and
3126(a)(7), all of which fall within the Sexual Offenses and Tier System found at 42 Pa.C.S.A. § 9799.14.
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