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HomeMy WebLinkAboutCP-21-CR-0002779-2012 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-2779-2012 : V. : CHARGE: 1. RAPE OF A CHILD; : 2. IDSI OF A CHILD; 3. UNLAWFUL : CONTACT WITH MINOR; 4. INDECENT : ASSAULT; 5. CORRUPTION OF A MINOR : KARL F. SCHUBERT : AFFIANT: PTL. BRIAN NAILOR IN RE: OPINION PURSUANT TO PA.R.A.P. 1925 Ebert, J., August 5, 2014 – Karl F. Schubert, Defendant in the above-captioned case, appeals his guilty verdict and sentence following a jury trial held on September 10 – 13, 2013. Defendant also appeals his designation as a sexually violent predator (hereinafter “SVP”). Specifically, Defendant complains of the following errors regarding his judgment of sentence: A. Whether the trial court abused its discretion in allowing the Commonwealth to contemporaneously write and display the Commonwealth witness \[E. L.’s\] testimony on an easel that was visible to the jury, thereby allowing the Commonwealth to improperly bolster witness testimony? B. Whether the trial court erred in overruling defense counsel’s objection to the Commonwealth’s leading question to Commonwealth witness \[E. L.\] of “You told us about what happened in the truck, \[E. L.\]. Did that happen at any other time?” C. Whether the trial court erred in refusing to allow defense counsel to cross-examine Commonwealth witness Debra Armstrong in the th September 12 trial regarding the whereabout’s of the alleged victim’s father? D. Whether the trial court erred in sustaining the Commonwealth’s objection to defense counsel’s cross-examination question “So why wouldn’t your wife be upset if you are charged with these type of crimes?” to Commonwealth witness Brian Nailor? E. Whether the trial court erred in sustaining the Commonwealth’s objection to defense counsel’s cross-examination question “What records did you check?” to Commonwealth witness Brian Nailor? F. Whether the trial court erred in abandoning its role as a jurist when it said during defense counsel’s cross-examination of Commonwealth witness Brian Nailor “You obviously believe it was a crappy 1 investigation. We have got that point.”? Defendant also complains of the following error with regard to his designation as a SVP: A. Whether the evidence was legally sufficient to designate the Defendant as a sexually violent predator pursuant to 42 Pa.C.S.A. § 9799.24, where the evidence clearly showed that Defendant does not have a mental abnormality that makes him likely to re-engage in predatory 2 sexually violent offenses? Facts and Procedural History A jury trial was held on September 11 – 13, 2013. At trial, E. L., who is now 18, testified that when she was about 8, she knew Defendant because he used to come to 3 her house and baby-sit her and her younger siblings. She explained that during the ages of 8-11, Defendant began to sexually abuse her. It began with Defendant pulling 4 her onto his lap, touching her, and kissing her. The instances of abuse increased to include oral sex and eventually one night Defendant took E. L. to his truck and stuck his 1 Defendant’s Concise Statement of Matters Complained of on Appeal, filed June 23, 2014 2 Defendant’s Concise Statement of Matters Complained of on Appeal, filed June 23, 2014 3 Notes of Testimony, In Re: Jury Trial, 17, Sep. 11, 12, 13, 2013 (hereinafter N.T. at __ ) 4 N.T. at 21 2 5 penis in her vagina. E. L. also testified that Defendant had vaginal intercourse with her 6 one other time inside her home on the couch. E. L. also explained that there were times when she would be swimming in her family’s pool and end up alone with Defendant. Defendant would then push her in the 7 corner of the pool and fondle her. During one of these incidents in the pool, E. L.’s older brother, Ethan Gingerich, saw what was happening. Both E. L. and Ethan testified 8 that Defendant threatened to kill Ethan if he told. E. L. also testified that throughout the 9 abuse Defendant threatened to kill her family to keep her quiet. E. L. was unable to say for sure the exact timeline of events, but stated that Defendant was over almost 10 every day during that time period, abusing her. When she was 11, E. L. and her family moved to a new house, Defendant stopped coming over, and the abuse 11 stopped. E. L. did not tell her parents about the abuse until she was 16. She was 12 then introduced to Ptl. Nailor and was interviewed at the Children’s Resource Center. Debra Armstrong, who is E. L.’s mother’s cousin, testified. She used to baby-sit E. L. almost every weekend during the times of the abuse and E.L. referred to her as 13 her aunt. Ms. Armstrong testified that she became concerned about E. L. because she became withdrawn and her behavior changed at some point when she was 14 watching her. She asked her what was wrong, but E. L. never told her anything. She 5 N.T. at 28-29 6 N.T. at 35 7 N.T. at 30 8 N.T. at 32, 126-27 9 N.T. at 36 10 N.T. at 18, 21, 41 11 N.T. at 36-37 12 N.T. at 38 13 N.T. at 93 14 N.T. at 96 3 even called child protective services anonymously but was unable to say who she 15 thought was abusing E. L. at the time. Linda Koppenhaver, a friend of E. L.’s mother, also testified that she used to 16 baby-sit the children. While baby-sitting, she noticed Defendant and E. L. under a blanket together, and at the pool Defendant “going after E. L., going behind her, picking 17 her up, and messing with her that way.” Linda testified that she stopped this behavior when she saw it happen. She did not tell E. L.’s mother about this because at the time 18 she did not think it was anything major. Ptl. Brian Nailor was the investigative officer for this case. He testified that he talked to E. L. and her parents. He conducted phone interviews of Ethan, Debra, and 19 Linda. Ptl. Nailor also conducted an interview with Defendant where he explained to him some of the allegations against him. Ptl. Nailor said that Defendant initially had trouble recalling who E. L. was, but remembered her when he mentioned her brother, 20 Ethan. Defendant told him he never actually baby-sat E. L., but would hang out at the house. Defendant also denied the sexual allegations and made comments about his 21 wife divorcing him when she found out. Defendant himself testified at trial that he never baby-sat for E. L. but admitted 22 that he went to school with Ethan and had been to E. L.’s house. Defendant denied 23 threatening Ethan or E. L. in any way. Defendant described his various jobs during 15 N.T. at 97-98 16 N.T. at 152 17 N.T. at 154 18 N.T. at 155 19 N.T. at 178 20 N.T. at 179 21 N.T. at 180-81 22 N.T. at 225-26 23 N.T. at 227 4 the relevant time period, which included running a landscaping business and working a 24 job tearing down barns. Defendant also participated in a co-op program during high 25 school, where he worked at a fire house for the second half of the school day. Defendant maintained that he never did any of the acts E. L. accused him of and testified that, “It could not have been. I mean I am only one person. I couldn’t be landscaping and doing all of these things and down there doing these heinous acts at 26 the same time.” After the conclusion of the trial, the jury returned a verdict of guilty for (1) rape of a child, (2) involuntary deviate sexual intercourse with a child, (3) unlawful contact with a minor, (4) indecent assault, and (5) corruption of minors. Following the jury trial, this Court ordered a SVP assessment as required by 42 Pa.C.S.A. § 9799.24(a). A hearing was held to determine Defendant’s status as a SVP on April 28, 2014. At the SVP hearing, Dr. Robert Stein, a licensed psychologist in Pennsylvania and a member of the Sexual Offenders Assessment Board of Pennsylvania, offered his 27 opinions about whether Defendant met the criteria to be a SVP. Dr. Stein went through the fifteen statutory factors individually. He noted that first of all this offense did not involve multiple victims. Next, he believed that Defendant exceeded the means necessary to achieve the offense because he made repeated threats to maintain compliance along with the use of some physical force. The third factor, the nature of the sexual contact, was relevant because it was not mere touching, but consisted of 24 N.T. at 230-31 25 N.T. at 232 26 N.T. 245-46 27 Notes of Testimony, In Re: Sexually Violent Predator Hearing, 4, April 28, 2014 (hereinafter “N.T. SVP at ___”); see also Com. Ex. 1x 5 28 acts of rape. The next factors looked at the victim and indicated that the victim was not related to Defendant. The victim was age 9 when the acts started. The next factor was whether or not there was any cruelty noted. Dr. Stein testified that he did consider there to be cruelty because ejaculating into a young girl’s mouth would have cruel 29 aspects to it. The next factor indicated that the victim had normal mental capacity. The next factors looked at Defendant. Defendant had no prior criminal record, no prior sentences, and no history of sex offense treatment or conviction. Defendant was 18 when the acts began. There was no reported use of illegal drugs by the Defendant. The next factor of a mental illness, mental disability or mental abnormality was consistent with pedophilia. Dr. Stein found no additional behavioral characteristics to report. Finally, he noted that there was a statistical factor related to risk because of 30 Defendant’s sustained sexual interest in a young child. Ultimately, Dr. Stein concluded that Defendant suffered from pedophilia, a sexual 31 attraction to pre-pubescent children for a period of six months or more. According to Dr. Stein, pedophilia is not a curable condition and there was sufficient evidence for him to conclude there was an unacceptable risk of re-offense if Defendant was left 32 unsupervised with children. Dr. Stein also opined that predatory behavior was established because Defendant used physical force and threats to maintain E. L.’s 33 compliance. Based on his assessment of Defendant and the fifteen factors contained 28 N.T. SVP at 7-8; Com. Ex. 1 29 N.T. SVP at 9-10 30 N.T. SVP at 10-11; Com. Ex. 1 31 N.T. SVP at 8-9 32 N.T. SVP at 11 33 N.T. SVP at 13 6 in 42 Pa.C.S.A. § 9799.24(b), Dr. Stein’s opinion was that Defendant met the criteria to be considered a SVP. Dr. Timothy Foley, who has a Ph.D. in Psychology and is primarily devoted to the 34 assessment and treatment of sex offenders, testified on behalf of Defendant. He evaluated the same fifteen factors as Dr. Stein and did agree that Defendant suffered from pedophilia, but he further characterized it as unrelated non-exclusive attracted to 35 females, which carried a lower risk of recidivism. Dr. Foley also agreed with Dr. Stein 36 about the predatory nature of the offense. Where Dr. Foley differed was in his opinion 37 that Defendant was unlikely to recidivate in the future. Dr. Foley used the Static-99, a risk assessment tool, for determining that Defendant was unlikely to re-offend in the future. He also testified to the limitations of the Static-99, because it does not take into 38 account unreported sex offenses. Dr. Foley also considered the fact that between 2006 and 2012, Defendant had no known history of sexual misconduct and that sex offender specific treatment would reduce Defendant’s risk for recidivism in coming to his 39 conclusion that Defendant is not likely to perpetuate sexually violent acts in the future. Ultimately, at the conclusion of the hearing, this Court found that the Commonwealth presented clear and convincing evidence that Defendant was a SVP. That same day, Defendant was sentenced at Count 1, Rape, felony of the first degree, to incarceration of 5 to 15 years in the State Correctional Institute. Defendant was also ordered to comply with lifetime Megan’s Law registration requirements. At 34 N.T. SVP at 45; see also Def. Ex. 1 35 N.T. SVP at 53 36 N.T. SVP at 57 37 N.T. SVP at 57 38 N.T. SVP at 56. The Static-99 is a statistical risk assessment tool used by Probation and Parole. The Sex Offender Assessment Board does not use this risk assessment tool, but rather looks to the 15 statutory factors to determine whether someone is a SVP. 39 N.T. SVP at 49,51 ;Def. Ex 1. at 7. 7 Count 2, Involuntary Deviate Sexual Intercourse, a felony of the first degree, Defendant was sentenced to 1 to 5 years incarceration in the State Correctional Institute to run consecutive to Count 1. At Count 3, Unlawful Contact With a Minor, Defendant was sentenced to incarceration of 5 to 15 years to run concurrent with Count 1. At Count 4, Indecent Assault, Defendant was sentenced to 5 months to 5 years to run concurrent with Count 1. At Count 5, Corruption of Minors, Defendant was sentenced to a period of incarceration of 9 months to 5 years to run concurrent with Count 1. Defendant’s 40 aggregate sentence is 6 to 20 years incarceration. Discussion I. Errors Complained of Regarding Trial A. Display of Chart Defendant first complains that it was error to allow the Commonwealth to contemporaneously write and display to the jury a chart containing E. L.’s testimony because it improperly bolstered her testimony. This Court did not err. At the beginning of E. L.’s testimony, the Commonwealth placed a chart in view of the jury that included E. L’s age and the grade level she was in during those ages. 41 The chart also included Defendant’s age. It should be noted that initially, Defendant 42 did not object to the placement of the chart. When E. L. began to tell the jury about the sexual acts that happened with Defendant, the Commonwealth wrote those acts on the chart in the appropriate age blocks. It was at this point that Defendant objected. A conversation was held at side-bar where Defense counsel argued that the chart was repetitious and bolstered E. L’s testimony. The Court ruled that the chart was a proper 40 Order of Court, In Re: Sentencing, April 28, 2014 41 N.T. at 15 42 N.T. at 15 8 demonstrative aid and would also be available for use during Defense’s cross- examination. The Court also cautioned the Commonwealth not to be repetitious in filling 43 out the chart. At the conclusion of the Commonwealth’s testimony, the chart was 44 admitted into evidence with no objection from Defendant. The decision to admit a chart is left to the discretion of the trial court. Commonwealth v. Johnson, 615 A.2d 1322, 1334 (Pa. Super. 1992). “A chart or diagram may be used at trial where it assists the jury in clarifying facts.” Id. (citing Commonwealth v. Hess, 548 A.2d 582, 590 (Pa. Super. 1988)). If the trial court concludes that the chart was helpful to the jury, the decision to admit the chart will likely be upheld. Id. In Johnson, the Commonwealth displayed a chart to keep track of the participants in a lottery organization, especially since some of those participants had similar names. The chart therefore “promoted clarity and rational fact-finding” and was properly used in that case. Id. In this case, the chart was used by the Commonwealth to keep track of the several instances of sexual abuse alleged by the victim, and because the abuse spanned several years, the age of the victim at the times the abuse occurred was important. Certainly this information was informative to the jury and promoted clarity in establishing a time line, especially when the trial occurred many years after the abuse. As Defendant did not object to the admission of the completed chart as evidence, he clearly did not have an objection to the information contained on the chart, just its placement in front of the jury. As the chart did not go to the deliberation room with the jury when they left to deliberate, the chart did not improperly bolster E. L.’s testimony. 43 N.T. at 25-26 44 N.T. at 206 9 The chart was simply a helpful demonstrative aid for the jury, which promoted clarity of the relative time frame of E. L.’s testimony. It was properly admitted and displayed. B. Overruling Objection to Question about Truck Defendant’s second error complained of is that this Court erred when it overruled a Defense objection to a question posed to E. L. by the Commonwealth. Prior to the question at issue E. L. had testified that one night Defendant took her to his truck, 45 where he engaged in vaginal intercourse with her. After this testimony the following exchange occurred: Assistant District Attorney : You told us what happened in the truck, \[E. L.\]. Did that happen at any other time? E. L .: Yes. Defense Counsel : Your Honor, I am going to object to the leading nature of these questions. It is just inappropriate to give within the question – Assistant District Attorney : It is not leading. Defense Counsel : It is. To say it happened again in the truck is leading. Assistant District Attorney : I didn’t – I asked her if it happened another time. It is not a leading question. The Court : Overruled. Was there another occasion you were in the truck with \[Defendant\] other than the one you just talked about? 46 E.L.: Not in the truck. But inside my home. The Court did not err in overruling this objection. It was not a leading question. The Assistant District Attorney was not stating or suggesting to E. L. that something happened in the truck a second time. Rather, for clarity, the Assistant District Attorney was pointing E. L. to a specific action and asked her if that particular action ever 45 N.T. at 28-29 46 N.T. at 34-35 10 happened a second time. A specific answer was not suggested to E. L. by the question and she was free to either say “yes” or “no”. Therefore, this Court did not err in overruling this specific objection. C. Questioning about Father Defendant’s third error complained of is that this Court erred in refusing to allow Defendant to cross-examine Debra Armstrong about the whereabouts of E. L’s father during the time of the abuse. This Court did not err. During his cross-examination of Debra Armstrong, who watched E. L. on the weekends during the time of the abuse, Defense counsel asked “Where was dad?” to 47 which an objection was raised. A conversation was held at sidebar, where it was established that at some time during E. L.’s life, her father was incarcerated for selling drugs. The Commonwealth wished to keep the information of her father’s incarceration from the jury because it was not relevant; it was enough to tell the jury that he was unavailable. Defense counsel argued that it did not make sense to tell a jury that the father was merely unavailable because they would question why he was unavailable, 48 especially when it was claimed Defendant was needed as a babysitter. This Court reviewed the probation records for E. L.’s father and determined that no discussion 49 regarding his incarceration would be permitted. All relevant evidence is admissible. However, evidence that is not relevant is not admissible at trial. Pa.R.E. 402. Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action. Pa.R.E. 401. Here, the evidence of E. L.’s 47 N.T. at 103 48 N.T. at 103-06 49 N.T. at 106 11 father’s incarceration was not relevant. Evidence regarding his incarceration is of no consequence to the jury in determining whether Defendant committed sexual acts against E. L. In fact, the evidence would only serve to confuse and prejudice the jury because it would tend to show that E. L.’s family was a “bad family”. The evidence of E. L.’s father’s whereabouts was simply not relevant to the charges against Defendant and this Court properly excluded that evidence. D. Sustaining Objection to Question about Wife Being Upset Defendant’s fourth error complained of is that this Court erred in sustaining a Commonwealth objection to a question posed by Defense counsel to Ptl. Nailor during cross-examination. During direct examination, Ptl. Nailor was asked by the Commonwealth about statements Defendant made to him when he interviewed Defendant. In particular the following exchange occurred: Assistant District Attorney : Do you recall anything else that \[Defendant\] said? Ptl. Nailor : It was somewhere around the time frame of me making the statement to him about the pool incident, he made a reaction kind of comment that something about his wife, when she finds out she is going to divorce him. Assistant District Attorney : Did you ask him about that? Ptl. Nailor : Yeah. I said, well, you know, why are you so worried about that if it didn’t happen. You have got nothing to worry about. He kind of 50 made the comment, just the mere nature of the allegation. During cross-examination, Defense counsel began to ask Ptl. Nailor about this statement: Defense Counsel : So why wouldn’t your wife be upset if you are charged with these types of crimes? 50 N.T. at 181 12 Assistant District Attorney : Objection, Your Honor. I think he is asking to speculate on why the defendant made the statement he did and why the defendant’s wife would be upset. The Court : Sustained. You can argue that. There was no error in this Court sustaining the Commonwealth’s objection. A lay witness’s testimony must be limited to one that is rationally based on the witness’s perception. Pa.R.E. 701(a). Therefore, any speculation about why someone may have said something is not permitted. Here, it appeared that Defense counsel was asking Ptl. Nailor to speculate as to why Defendant made the comment to him about his wife divorcing him. Ptl. Nailor would not have been able to state with any certainty why Defendant made that statement. Therefore, this Court properly sustained the Commonwealth’s objection and informed Defense counsel he was free to argue that point. In fact, during his closing argument, Defense counsel made the following statement: I submit to you what you heard here from those character witnesses is about a peaceable, non-violent, truthful and honest person who when confronted with this horrible story, not knowing why he was going to see Officer Nailor, immediately said none of this is true. I don’t know what you are talking about. If fact, if you say these crazy things about me, my 51 wife is going to divorce me. This is crazy. Defense counsel was still able to make his argument and to explain to the jury about why Defendant made those statements regarding his wife divorcing him without asking Ptl. Nailor to speculate about it. There was no prejudice to Defendant in this Court sustaining the Commonwealth’s objection to this question. This Court did not err. 51 Notes of Testimony, In Re: Closing Arguments, 25, September 13, 2013 13 E. Question about Records Defendant’s fifth error complained of is that this Court erred when it sustained an objection from the Commonwealth to Defense counsel’s question about checking records during the cross-examination of Ptl. Nailor. The relevant objection followed this exchange at trial: Defense counsel : What did you do in the case to follow-up about the th residency that they claimed \[Defendant\] had on 7 Street? What records did you check to find out if he resided – Ptl. Nailor: I have known the Schuberts for many years and I know that th they live at 400 and something 7 Street. Defense counsel : What records did you check? Assistant District Attorney: Objection, Your Honor. He asked what follow-up. The Court: It has been asked and answered. He said he knew the family 52 the whole time. The Court did not err in sustaining the Commonwealth’s objection. Prior to asking Ptl. Nailor what records he checked, Defense counsel asked him what he did to follow-up with Defendant’s residency at the time of the allegations. Ptl. Nailor replied th that he knew Defendant’s family and knew they lived on 7 Street. As the question regarding what records he checked asked for the same information as the previous question about what follow-up he did, there was no error in sustaining the Commonwealth’s objection. This was a very minor matter. The import of Ptl. Nailor’s testimony is crystal clear…I have known the Schubert’s for years…I know where they live…I don’t need to check records. There was no prejudice to Defendant. This Court did not err. 52 N.T. at 197 14 F. Judge’s Comments The sixth error Defendant complains of is that the Court erred when it made comments during the Defense’s cross-examination of Ptl. Nailor. This Court did not err. The entire exchange leading up to the Court’s comments should be considered in full. Defense counsel was repeatedly questioning Ptl. Nailor about the records he checked or did not check regarding his investigation of this case. In fact, after a series of questions about checking records, Defense counsel made a comment that was 53 required to be stricken from the record. After that, the following exchange occurred: Defense Counsel : So, in essence, you just took the word of what they said to you as to where they were at what times? Ptl. Brian Nailor : This is all coming down to it was reported years after. What are we going to find? If you want diagrams and stuff like that, we can surely provide that stuff for you, but – Defense Counsel : Do you think that is necessary to show to a jury? You don’t think any of that is necessary. Do you? Ptl. Brian Nailor : Everything is going to come down to the reliability and credibility of the witnesses and the victim. Defense Counsel : Exactly. So when you talk about credibility of the victim, what could you have done on the issue of what she said and what you could have proven or disproven? You didn’t do anything to try – Assistant District Attorney : I’m going to object. There are several – I don’t know even know if it is a question. The Court : Sustained. It is argument. You have gotten that he took the statements, he wrote this report, the charges are here today, you 54 obviously believe it was a crappy investigation. We have got that point. This reference to a “crappy investigation” is what Defendant complains was made in error. 53 N.T. at 202-03 54 N.T. at 203-04 15 The role of a judge during trial is one of impartiality and he should therefore refrain from conduct or comments that indicate favor or condemnation toward a party. Commonwealth v. Nesbitt, 419 A.2d 64, 67 (Pa. Super. 1980)(internal citations omitted). “A new trial is required when the remark is prejudicial; that is, when it is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial.” Id. at 67 (quoting Commonwealth v. Goosby, 301 A.2d 673, 674 (Pa. 1973)). Not every remark or comment is prejudicial. Here, the comment made by the Court was not prejudicial to Defendant. The comment gave no indication of the Court’s opinion as to the guilt or innocence of the Defendant. In fact, the comment gave no suggestion of any bias either for or against Defendant. The comment merely summarized Defendant’s line of questioning regarding the lack of records that Ptl. Nailor checked during the investigation. In all candor, the Court’s comment about the police investigation as being “crappy” was more deleterious to the Commonwealth and capsulized the main theme of the Defendant’s closing argument. That theme being that the police had not done an adequate investigation and simply accepted the victim’s story as true without any further corroboration. It should also be noted that during this Court’s opening instructions to the jury, the jury was informed that: None of my rulings should be regarded as an indication of my opinion as to what your finding should be, nor should any questions I may ask a witness. In fact, you should not take anything I say or do to imply any opinion on my part about this case. Your opinions about the case are the only ones that matter. You and you alone are the sole finders of the 55 facts. 55 N.T. at 7-8 16 This Court did not abandon its role as a jurist when it made the above comment about the investigation. The comment gave no indication as to this Court’s opinion regarding the trial or Defendant. It certainly did not deprive Defendant of a fair and impartial trial. II. Error Complained of Regarding SVP Designation Finally, Defendant complains that there was not legally sufficient evidence to designate Defendant as a SVP. Defendant argues that the evidence showed that Defendant does not have a mental abnormality that makes him likely to re-engage in predatory sexually violent offenses. An individual is designated to be a SVP if he or she was convicted of one the enumerated sexual acts and is determined to be a SVP 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; see also Commonwealth v. Bishop, 936 A.2d 1136, 1141 (Pa. Super. 2007). A mental abnormality is defined 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. Id. The term “predatory” is defined 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. Id. The standard of ‘clear and convincing evidence’ is used when determining SVP status. Bishop, 936 A.2d at 1141. This “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.” Id. 17 In Commonwealth v. Meals, the Pennsylvania Supreme Court upheld the trial court’s finding of SVP status. 912 A.2d 213, 225 (Pa. 2006). In Meals, the defendant was diagnosed to have pedophilia after he committed sexual acts against two young girls. The doctor who performed the assessment of the defendant stated that pedophilia was highly related to a risk to re-offend. Id. at 223. The Pennsylvania Supreme Court went on to state that: \[t\]o the extent appellee felt that the expert’s ‘diagnosis’ was not fully explained, did not square with accepted analyses of the disorder, or was simply erroneous, he certainly was free to introduce evidence to that effect and/or to argue to the factfinder that the Commonwealth’s expert’s conclusions should be discounted or ignored. But that argument would affect the weight, and not the sufficiency, of the expert’s evidence. Id. at 223-24 (emphasis added). Here, there was clear and convincing evidence to find that Defendant is a SVP. Defendant’s convictions fall under the list of enumerated sexually violent offenses listed within the statute, satisfying the first element of an SVP. Dr. Stein testified, and Defendant’s expert, Dr. Foley, agreed that Defendant suffers from pedophilia. Dr. Stein also testified, and Dr. Foley agreed, that there was predatory behavior established due to the physical force and threats Defendant used to maintain the compliance of the victim. Therefore, the only point of disagreement between the two experts was whether Defendant was likely to re-offend. Dr. Stein testified that pedophilia is a lifetime condition that is not curable. Dr. Stein stated that statistically speaking, there is an increased risk of re-offending for those having a sexual interest in young children. Dr. Stein also testified that the nature of the offense indicated a sexual obsession with a child and combined with the fact that the abuse escalated after E. L.’s brother witnessed the acts, instead of ending, led him 18 56 to his conclusion that there was a risk of re-offense. Therefore, the risk of re-offending 57 if left unsupervised with children was an unacceptable risk to Dr. Stein. Dr. Foley testified that he did not think Defendant was likely to re-offend because he had already passed through the highest risk years without additional sexual offenses and that he appears to have sufficient volitional controls in controlling his sexual 58 behavior. Dr. Foley relied on the Static 99, a statistical risk assessment tool to come to this conclusion. However, according to Dr. Stein, the Static 99 is not used by the Sexual Offender Assessment Board, but is used by the Parole Board because they are interested in short term recidivism. And even though the Parole Board uses the Static 59 99, it is one small piece they look at when determining whether to release prisoners. The Court, as factfinder, was free to believe all, part, or none of the witnesses’ testimony. This is true even when the witnesses are experts. Any testimony by Dr. Foley affected the weight of the evidence and not the sufficiency. After hearing the testimony, this Court found Dr. Stein’s testimony to be more credible. There was clear and convincing evidence for this Court to find that Defendant is a SVP. There was evidence that Defendant suffered from a mental abnormality or personality disorder; pedophilia. There was sufficient evidence that pedophilia cannot be cured and that it carries a higher risk of re-offending. There was also uncontradicted evidence that Defendant’s actions during the commission of the offense satisfied the predatory prong of the statute. There was sufficient evidence to find Defendant to be an SVP and this Court did not err. 56 N.T. SVP at 14-15 57 Com. Ex. 1 58 Def. Ex. 1 59 N.T. SVP at 17 19 By the Court, ___________________________ M. L. Ebert, Jr., J. Christin Mehrten-Carlin, Esquire District Attorney’s Office Dennis E. Boyle, Esquire K. Edward Raleigh, Esquire Austin S. Brunson, Esquire Attorneys for Defendant 20