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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

MICHAEL LAWONE LAKE

                            Appellant                No. 49 MDA 2016


          Appeal from the Judgment of Sentence December 11, 2015
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0007090-2013


BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                     FILED SEPTEMBER 09, 2016

        Appellant Michael Lawone Lake appeals from the December 11, 2015

judgment of sentence entered in the York County Court of Common Pleas.

He argues the trial court erred when it found Appellant was a sexually

violent predator (“SVP”). We affirm.

        On March 2, 2015, Appellant pled guilty to corruption of minors,

indecent exposure, and unlawful contact with minor.1 The trial court ordered

a sex offender assessment pursuant to 42 Pa.C.S. § 9799.24. On December

11, 2015, the trial court held a hearing to determine whether Appellant was

an SVP. At the hearing, the Commonwealth presented the testimony of Dr.



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1
    18 Pa.C.S. §§ 6301(a)(1), 3127, and 6318, respectively.
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Robert Stein. Appellant presented the testimony of Dr. Timothy Foley. Both

were accepted as experts.

      Dr. Stein testified regarding the 15 factors to be considered when

determining whether someone is an SVP. N.T., 12/11/2015, at 7-13. Dr.

Stein found that Appellant suffered from other specified paraphilic disorder:

non-consent.    Id. at 13-14.     He also found Appellant’s behavior was

predatory. Commonwealth’s Exh. A, SVP Assessment, at 6. He concluded,

to reasonable degree of professional certainty, that Appellant met the

criteria to be classified as an SVP. N.T., 12/11/2015, at 14.

      Dr. Foley testified that he also reviewed the 15 factors, as well as an

assessment tool known as Static 99.        N.T., 12/11/2015, at 50-52.      He

concluded Appellant did not meet the definition of an SVP and found

Appellant did not suffer from a mental abnormality. Id. at 51-52.

      Following the hearing, the trial court found Appellant suffered from

other specified paraphilic disorder: non-consent and that the disorder

increased his likelihood of predatory behavior.    N.T., 12/11/2015, at 58.

The court found the Commonwealth established by clear and convincing

evidence that Appellant met the definition of an SVP.      Id.   In its opinion

submitted pursuant to Pennsylvania Rule of Appellate Procedure 1925(a),

the trial court noted that Dr. Stein’s testimony was “particularly credible.”

1925(a) Opinion, filed 2/29/2016, at 10.




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        On December 11, 2015, the same day as the SVP hearing, the trial

court sentenced Appellant to 2½ to 5 years’ imprisonment.2

        On January 8, 2016, Appellant filed a notice of appeal. Both Appellant

and the trial court complied with Pennsylvania Rule of Appellate Procedure

1925.

        Appellant raises the following issue on appeal:

           Whether the trial court erred when it found that there was
           clear and convincing evidence that [Appellant] was a
           sexually violent predator?

Appellant’s Brief at 4.

        A challenge to a trial court’s determination that a defendant is an SVP

is a challenge to the sufficiency of the evidence. Commonwealth v. Meals,

912 A.2d 213, 218 (Pa.2006). This Court’s standard of review is de novo

and our scope of review is plenary. Id. When reviewing a challenge to a

trial court’s SVP determination, this Court must view the evidence “in the

light most favorable to the Commonwealth.” Commonwealth v. Prendes,

97 A.3d 337 (Pa.Super.2014) (quoting Commonwealth v. Plucinski, 868

A.2d 20, 25 (Pa.Super.2005)).            Further, this Court “may not weigh the

evidence or substitute its judgment for that of the trial court.” Id.



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2
  The trial court imposed a sentence of 2½ to 5 years for both the corruption
of minors and indecent exposure convictions and a sentence of 1½ to 3
years for the unlawful contact with minor conviction. All sentences were
concurrent.



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     Where a defendant has been convicted of a sexually violent offense, a

court shall order the Sexual Offenders Assessment Board (“SOAB”) to

conduct an assessment to determine whether the defendant is an SVP. 42

Pa.C.S. § 9799.24(a).       Section 9799.24(b) governs assessments to

determine whether a defendant is an SVP and provides:

        (b) Assessment.—Upon receipt from the court of an
        order for an assessment, a member of the board . . . shall
        conduct an assessment of the individual to determine if the
        individual should be classified as a[n SVP]. The board
        shall establish standards for evaluations and for evaluators
        conducting the assessments. An assessment shall include,
        but not be limited to, an examination of 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:

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           (i) Age.

           (ii) Use of illegal drugs.

           (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. § 9799.24(b).

     Following the assessment, the trial court conducts a hearing to

determine whether the defendant is an SVP. This Court has explained:

        “To deem an individual a[n SVP], the Commonwealth must
        first show [the individual] ‘has been convicted of a sexually
        violent offense as set forth in [section 9799.14] . . . .’”
        Commonwealth v. Askew, 907 A.2d 624, 629
        (Pa.Super.2006), appeal denied, 919 A.2d 954
        ([Pa.]2007).      See also 42 Pa.C.S.A. § 9799.12.
        “Secondly, the Commonwealth must show that the
        individual has ‘a mental abnormality or personality
        disorder that makes [him] likely to engage in predatory
        sexually violent offenses.’” Askew, supra. When the
        Commonwealth meets this burden, the trial court then
        makes the final determination on the defendant’s status as
        an SVP. [Commonwealth v. Kopicz, 840 A.2d 342, 351
        (Pa.Super.2003)].

        An SVP assessment is not a trial or a separate criminal
        proceeding that subjects the defendant to additional
        punishment. Commonwealth v. Howe, 842 A.2d 436,
        445–46 (Pa.Super.2004). SVP status, therefore, does not
        require proof beyond a reasonable doubt; the court
        decides SVP status upon a show of clear and convincing
        evidence that the offender is, in fact, an SVP.
        Commonwealth v. Killinger, [] 888 A.2d 592, 600
        ([Pa.]2005).



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Prendes, 97 A.3d at 357-58. “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 [at] issue.”     Id. at 355 (quoting Commonwealth v.

Plucinski, 868 A.2d 20, 25 (Pa.Super.2005)).

      Further,

         [T]here is no statutory requirement that all of [the
         statutory factors] or any particular number of them be
         present or absent in order to support an SVP designation.
         The factors are not a checklist with each one weighing in
         some necessary fashion for or against SVP designation.
         [Commonwealth v.] Brooks, [7 A.3d 852,] 863
         [(Pa.Super.2014)]. Thus, “[t]he Commonwealth does not
         have to show that any certain factor is present or absent in
         a particular case.” Id. Moreover, “the absence of an
         interview does not preclude the ability to evaluate the
         offender's behavior through available history for
         characteristics similar or dissimilar to the criteria set forth
         in the law for defining a[n SVP].” Commonwealth v.
         Woods, 909 A.2d 372, 381 (Pa.Super.2006), appeal
         denied, 919 A.2d 957 ([Pa.]2007). Likewise, “to carry its
         burden of proving that an offender is an SVP, the
         Commonwealth is not obliged to provide a clinical
         diagnosis by a licensed psychiatrist or psychologist . . . .”
         Commonwealth v. Conklin, 897 A.2d 1168, 1178
         ([Pa.]2006).

Prendes, 97 A.3d at 358-590.

      The trial court found:

         [B]ased upon clear and convincing evidence presented by
         the Commonwealth, [Appellant] (1) suffers from “Other
         Specified Paraphilic Disorder: Non-Consent,” and (2) that
         this disorder increases [Appellant’s] likelihood of predatory
         behavior.




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       At the hearing, the Commonwealth presented expert
       testimony from Dr. Robert Stein, a licensed psychologist
       and member of the SOAB. [Appellant] presented Dr.
       Timothy Foley, a licensed psychologist in private practice.
       This court accepted both witnesses as experts in the field
       of sexual offender assessment after stipulations between
       the Commonwealth and [Appellant]. (N.T. SVP Hearing,
       12/11/15, at 3, 29.)

       Dr. Stein, the Commonwealth’s expert witness, reviewed
       the fifteen statutory factors . . . . (See Com.’s Ex. 1 at
       numbered pages 4-5.) Based upon this review, Dr. Stein
       testified it was his opinion that [Appellant] suffers from
       Other Specified Paraphilic Disorder: Non-Consent. Id. at
       6; (N.T. SVP Hearing, 12/11/15, at 9). In support of his
       diagnosis, Dr. Stein highlighted various facts of the case,
       including a more than two year duration of sexual abuse,
       [Appellant’s] apparent sexual obsession with the victim,
       and [Appellant’s] sexually deviant behaviors with the
       victim over a period of greater than six months. Id. at 5.

       Specifically, with respect to [Appellant’s] deviant behavior,
       Dr. Stein cited the victim’s lack of consent both by age and
       behavior, and that [Appellant] and victim were not
       engaged in a dating relationship. Id. Further supporting
       the deviance of [Appellant’s] acts, Dr. Stein testified he
       found an “element of cruelty” in [Appellant’s] habit of
       ejaculating into the victim’s mouth. (N.T. SVP Hearing,
       12/11/15, at 7.) Dr. Stein also noted [Appellant’s]
       “extensive antisocial history” as an aggravating factor in
       forming his diagnosis. (Com.’s Ex. 1 at numbered page 5.)

       Dr. Stein opined that [Appellant’s] disorder is an incurable,
       lifetime condition and was the impetus to commit the
       sexual offenses. Further, he concluded that this condition
       overrode [Appellant’s] emotional or volitional control, and
       that sufficient evidence existed that [Appellant] would
       reoffend. Id.




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          Dr. Stein posited that [Appellant’s] behavior with the
          victim was predatory[3] in nature, as [Appellant] veiled his
          sexually deviant acts under the guise [Appellant] was
          protecting her from being raped.         “Such convoluted
          reasoning,” Dr. Stein stated in his report, “served to
          establish, maintain and promote a sexually victimizing
          relationship.” Id.

          [Appellant] presented expert testimony from Dr. Timothy
          Foley, who concluded in his professional opinion upon
          review of the fifteen statutory factors, as well as an
          assessment tool known as the “Static 99,” that [Appellant]
          did not meet the definition of an SVP. (N.T. SVP Hearing,
          12/11/2015, at 36.) Dr. Foley posited that [Appellant] did
          not suffer from a “mental abnormality.” Id. at 37.

          Dr. Foley raised questions regarding the diagnosis of Other
          Specified Paraphilia: Non-Consent. In his opinion, a
          specification of non-consent was “incredibly vague” making
          [Appellant’s] diagnosis “unreliable.” (N.T. SVP Hearing,
          12/11/2015, at 31, 37). Notably, however, Dr. Foley
          admitted that their profession vests Dr. Stein with some
          degree of flexibility in diagnosing [Appellant] with Other
          Specified Paraphilia. Id. at 32.

          Even assuming, arguendo, that Dr. Foley argued, and this
          Court accepted as true, a diagnosis of a paraphilic
          disorder: non-consent is not generally accepted in the field
          of psychology, such evidence does not prohibit this court
          from finding that he meets the definition of an SVP under
          the statute. Commonwealth v. Dengler, [] 890 A.2d
          372, 383 ([Pa.]2005) (“The [Megan’s Law] statute does
          not require proof of a standard of diagnosis that is
          commonly found and/or accepted in a mental health
          diagnostic paradigm.”) Rather, the diagnosis upon which
          this court relies must track the statutory constructs
          promulgated by the General Assembly. Id.

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3
 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.”
42 Pa.C.S. § 9799.12.



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        This Court questioned Dr. Foley's credibility upon cross-
        examination, when he skirted questions by the attorney for
        the Commonwealth relating to whether [Appellant’s]
        sexual acts with the victim were, in fact, sexually deviant.
        Instead of answering the question directly, Dr. Foley - to
        use his own language – “tried to parse” his response.9 Id.
        at 39
           9
              Dr. Foley agreed “that committing a sexually
           violent act towards an adolescent certainly deviates
           from the norm.” Id. at 39.

        This court found Dr. Stein’s expert opinion, which was
        made within a reasonable degree of professional certainty,
        particularly credible. Thus, this court found sufficient
        evidence existed to support a finding that [Appellant]
        meets the statutory definition as a[n SVP].

        This court found the Commonwealth proved by clear and
        convincing evidence that [Appellant] suffered from a
        mental abnormality, Other Specified Paraphilia: Non-
        Consent, and that [Appellant’s] behavior was predatory.

        Resultantly, this court concluded that [Appellant] meets
        the statutory definition of a[n SVP].

Pa.R.A.P. 1925(a) Opinion, filed 2/29/2016, at 6-10.

     We agree with the trial court’s analysis and its conclusion that the

Commonwealth established, by clear and convincing evidence, that Appellant

was an SVP.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2016

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