Commonwealth v. Conklin

• Decision Date: 24 May 2006
• Citation: 897 A.2d 1168
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Donald Robert CONKLIN, Appellant.
• Court: Pennsylvania Supreme Court

897 A.2d 1168

COMMONWEALTH of Pennsylvania, Appellee, v. Donald Robert CONKLIN, Appellant.

Supreme Court of Pennsylvania.

Argued May 17, 2005.

Decided May 24, 2006.

Scott B. Bennett, Esq., Jeffrey J. Wander, Esq., Honesdale, for Donald Robert Conklin.

Patrick Leland Robinson, Esq., Michael P. Lehutsky, Esq., Honesdale, for Commonwealth of Pennsylvania.

John Craig Manning, Esq., Harrisburg, for amicus curiae Sexual Offender Assessment Board.

BEFORE: CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN, and BAER, JJ.

OPINION

Justice CASTILLE.

Recently, in Commonwealth v. Dengler, 890 A.2d 372 (2005), this Court held that expert testimony proffered in a Megan's Law II¹ hearing to determine if a defendant is a sexually violent predator ("SVP") is not subject to the Pennsylvania test for admissibility of novel scientific testimony derived from Frye v. United States, 293 F. 1013 (D.C.Cir.1923). In the case sub judice, this Court granted review to consider a separate question concerning the contours of an SVP hearing under Megan's Law II: "Whether the Commonwealth, as part of its burden of proof in a proceeding to determine whether an individual is a sexually violent predator, must present evidence, in the form of a clinical diagnosis by a licensed psychologist or psychiatrist, that the individual suffers from a personality disorder or mental abnormality that makes the person likely to engage in predatory sexually violent offenses?" Commonwealth v. Conklin, 581 Pa. 622, 867 A.2d 1261 (2005) (per curiam). The lower courts found that the licensed clinical social worker who testified in the SVP hearing in this case, though not a licensed psychologist or psychiatrist, nevertheless was qualified to offer opinion testimony on the question of whether appellant was an SVP because the clinical social worker qualified as a criminal justice expert and the statute requires no more. We agree with the lower courts' interpretation of the statutory requirement, and we therefore affirm.

Appellant and his ex-wife, who are the parents of the minor victim, separated in January of 2001 and divorced in September of 2001. In March of 2002, the victim, who was then nine years old, informed her mother that appellant had been sexually abusing her for approximately three years. Appellant subsequently was arrested and charged with various sexual offenses. At appellant's trial, the child testified that the sexual assaults began when she was six years old and included repeated acts of rape and involuntary deviate sexual intercourse.

On March 19, 2003, following a jury trial before the Honorable Robert J. Conway, appellant was found guilty of rape,² involuntary deviate sexual intercourse,³ aggravated indecent assault,⁴ incest,⁵ indecent assault,⁶ indecent exposure⁷ and corruption of a minor.⁸ Appellant's convictions qualified him as subject to the registration and notification provisions of Megan's Law II, and also required a determination of whether he was an SVP, which would expose him to additional measures. The Act defines a "sexually violent predator," in relevant part, 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. § 9792.⁹

In accordance with the Act, after receiving the verdict Judge Conway directed the State Sexual Offender Assessment Board to perform an SVP assessment of appellant. David Humphreys, a licensed clinical social worker and member of the Board, conducted the assessment and prepared a written report in which he concluded, to a reasonable degree of professional certainty, that appellant met the statutory criteria for classification as an SVP. Within the report, Humphreys described the records he had consulted as well as his interview with appellant, and then went on to discuss and apply the statutory criteria relevant to assessing SVP status, which included an evaluation of "[f]actors related to mental illness, mental disability or mental abnormality." Humphreys opined that appellant's behavior and his presentation during his interview indicated that he had a "form of pedophilia, which has been limited to incest," as well as an anti-social personality disorder, both of which were exacerbated by alcoholism. Humphreys described the reasons why his "diagnostic impressions" in this regard led him to conclude that appellant "does have a mental abnormality which appears to be both a congenital and/or an acquired condition of [appellant] that affects his emotional and volitional capacity . . . in a manner that predisposes [appellant] to the commission of criminal sexual acts to the degree that makes [appellant] a menace to the health and safety of other persons." Offender Evaluation, 11-12. Humphreys also explained why he believed appellant's behavior was predatory.

On August 12, 2003, the trial court conducted an SVP hearing, at which the Commonwealth called Humphreys to testify as an expert. With respect to his qualifications, Humphreys testified that he had Bachelor's degrees in both psychology and sociology, as well as a Master's degree in social work; that he had been a member of the Sexual Offender Assessment Board since 1997; that he had seventeen years of experience as a social worker, all of which involved working with sex offenders; and that he was the director of the sex offender program at a local mental health agency, Tri-County Human Services. With respect to the criminal justice system, Humphreys testified that he had provided numerous evaluations for county agencies, as well as the county, state and federal probation and parole systems, and that he had testified as an expert on SVP classification in various courts in northeastern Pennsylvania. In addition to his work at Tri-County Human Services, where he worked with several hundred offenders a year, Humphreys testified that he conducted 12-20 SVP assessments per year; in roughly half of those cases, he had determined that the offender met the SVP classification criteria. N.T. 8/12/03, 2-6.

On cross-examination, appellant elicited that Humphrey was neither trained nor licensed as a psychiatrist or a psychologist and, as a result, he could not offer opinions to a reasonable degree of certainty in those fields. However, Humphreys noted that he was qualified and licensed, by his training and experience, to offer opinions and "diagnostic impressions" "to a reasonable degree of professional certainty based upon my experience, knowledge, background and training." Appellant then objected that Humphreys "not be considered qualified to issue a clinical diagnosis with regard to mental illness, mental disability or mental abnormality for the purpose of this Megan's Law hearing." The court overruled the objection and Humphreys testified consistently with his report. Id. at 6-11, 20-23.

After hearing Humphreys' testimony and further argument from the parties, the trial court determined that appellant was an SVP. With respect to Humphreys' qualifications to testify on that question, the court noted that, "we [are] talking about a person who [has] been in that field for 17 years and has been appointed by the state to do exactly what he's done here today." The court added that, "[w]e also have the conviction, which is a proven fact before us. We also have a period of over two years of having a young child, his daughter sexually molested in various ways." Id. at 38. The court then sentenced appellant to a term of imprisonment for ten to twenty years and a fine of $2,000.

Appellant appealed to the Superior Court arguing, inter alia, that the Commonwealth had failed to meet its burden of establishing by clear and convincing evidence that appellant is an SVP because Humphreys was not qualified to testify that appellant had a mental abnormality.¹⁰ The Superior Court affirmed in an unpublished decision. The panel majority noted that Megan's Law II specifically lists "psychiatrists, psychologists and criminal justice experts each of whom is an expert in the field of the behavior and treatment of sexual offenders" as individuals who could serve on the Board — and thus conduct SVP assessments and testify on the question of SVP classification. See 42 Pa.C.S. § 9799.3. Because it was undisputed that Humphreys was a qualified criminal justice expert, the panel majority concluded that Humphreys could perform and testify to SVP assessments, including assessments regarding mental abnormality or personality disorder.

President Judge Joseph A. Del Sole dissented, opining that Humphreys was not qualified to testify as an expert on SVP classification because, in the dissent's view, such an expert must make a "diagnosis" of mental abnormality or personality disorder, which falls outside the expertise of a person who is not a licensed psychiatrist or psychologist. The dissent further argued that, while Humphreys was qualified as a criminal justice expert to be a member of the Board, the statutory scheme "does not diminish or reduce the criteria for expert testimony by automatically qualifying a non-licensed psychologist or psychiatrist as an expert who can give a differential diagnosis on mental abnormality or personality disorder for purposes of the statute." Dissenting Memorandum at 2. Because the dissent construed Megan's Law II as requiring expert diagnostic testimony and no such valid expert testimony was presented in the case sub judice, the dissent concluded that the Commonwealth failed to establish that appellant was an SVP.

On this appeal, appellant begins by noting that Megan's Law II defines "mental abnormality" as: "A congenital or acquired condition of a person that affects the emotional or volitional capacity of the person in a manner that...