Commonwealth v. Pagan

• Decision Date: 10 December 2020
• Docket Number: No. 781 MDA 2020,781 MDA 2020
• Citation: 245 A.3d 1058 (Table)
• Parties: COMMONWEALTH of Pennsylvania v. Carlos Manuel PAGAN, Appellant
• Court: Pennsylvania Superior Court

245 A.3d 1058 (Table)

COMMONWEALTH of Pennsylvania v. Carlos Manuel PAGAN, Appellant

No. 781 MDA 2020

Superior Court of Pennsylvania.

Filed December 10, 2020

MEMORANDUM BY BENDER, P.J.E.:

Appellant, Carlos Manuel Pagan, appeals from the August 29, 2019 judgment of sentence of 221 days' to 23 months' imprisonment, followed by 3 years' probation, imposed after he pled guilty to one count of indecent assault of a victim less than 13 years of age, 18 Pa.C.S. § 3126(a)(1)(ii). Herein, Appellant challenges his designation as a Sexually Violent Predator (SVP) under Subchapter H of the Sexual Offender Registration and Notification Act ("SORNA II"), 42 Pa.C.S. §§ 9799.10 - 9799.42. ¹ After careful review, we affirm.

On August 29, 2019, Appellant pled guilty to the above-stated offense. He waived his right to a pre-sentence SVP determination and was sentenced that same day to the aggregate term set forth supra . On April 30, 2020, the court held a hearing to determine if Appellant should be deemed an SVP. Based upon the testimony of Veronique N. Valliere, Psy.D. ("Dr. Valliere"), a member of the Pennsylvania Sexual Offenders Assessment Board ("SOAB"), the court entered an order finding that Appellant met the statutory criteria for designation as an SVP under Subchapter H of SORNA II.

On May 26, 2020, Appellant filed a timely notice of appeal. See Commonwealth v. Schrader , 141 A.3d 558, 561 (Pa. Super. 2016) (concluding "that where a defendant pleads guilty and waives a pre-sentence SVP determination, the judgment of sentence is not final until that determination is rendered"). Additionally, Appellant attached to his notice of appeal a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. ² The trial court filed a Rule 1925(a) opinion on June 16, 2020. Herein, Appellant states four issues for our review:

[I.] Whether the [trial] court erred in designating Appellant as a[n SVP] where the Commonwealth adduced legally insufficient (unclear and unconvincing) evidence to support a finding that Appellant's mental disorder served as the impetus for his sexual offense, or that he had a high likelihood of sexual recidivism[?]

[II.] Whether the lifetime[ ]registration requirements of Subchapter H of [SORNA II] constitute an illegal sentence that violates the due process clause of the [United States] and [Pennsylvania] Constitutions because they are impermissibly punitive, based on an irrebuttable false presumption, and do not require a finding of guilt beyond a reasonable doubt[?]

[III.] Whether Subchapter H's provisions[,] regarding automatic lifetime[ ]registration requirements, demonstrated earlier in Appellant's brief to be unconstitutionally punitive, are not severable from its provisions regarding requirements for SVPs: wherefore the latter must be stricken down with the former, along with the entirety of Subchapter H?

[IV.] Whether the lifetime-registration requirements of Subchapter H of SORNA [II] involve unconstitutionally cruel and unusual punishment[?]

Appellant's Brief at 7-8 (footnote, quotation marks, and emphasis omitted).

Appellant first challenges the sufficiency of the evidence to sustain his designation as an SVP.

In order to affirm an SVP designation, we, as a reviewing court, must be able to conclude that the fact-finder found clear and convincing evidence that the individual is a[n SVP]. As with any sufficiency of the evidence claim, we view all evidence and reasonable inferences therefrom in the light most favorable to the Commonwealth. We will reverse a trial court's determination of SVP status only if the Commonwealth has not presented clear and convincing evidence that each element of the statute has been satisfied.

Commonwealth v. Hollingshead , 111 A.3d 186, 189 (Pa. Super. 2015) (citation omitted).

This Court has explained the SVP designation process, as follows:

After a person has been convicted of an offense listed in 42 Pa.C.S. § 9799.14, the trial court then orders an assessment to be done by the SOAB to help determine if that person should be classified as an SVP. An SVP is defined as a person who has been convicted of a sexually violent offense ... and who has a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses. In order to show that the offender suffers from a mental abnormality or personality disorder, the evidence must show that the defendant suffers from a congenital or acquired condition 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. Moreover, there must be a showing that the defendant's conduct was predatory.... Furthermore, in reaching a determination, we must examine the driving force behind the commission of these acts, as well as looking at the offender's propensity to reoffend, an opinion about which the Commonwealth's expert is required to opine. However, the risk of reoffending is but one factor to be considered when making an assessment; it is not an independent element.

Hollingshead , 111 A.3d at 189-90 (citation and brackets omitted).

In this case, Appellant argues that the Commonwealth failed to prove that the impetus behind his offense was a mental abnormality or personality disorder. See Appellant's Brief at 17 (citing Commonwealth v. Bey , 841 A.2 562, 566 (Pa. Super. 2004) ("The salient inquiry, mandated by the statute, ... in determining SVP status is identification of the impetus behind commission of the offense, that is, whether it proceeds from a mental defect/personality disorder or another motivating factor.")). He further insists that the Commonwealth did not establish that his "disorder[,] in particular [,] makes it likely that he will commit further sexually violent offenses." Id. at 18 (emphasis in original). According to Appellant, the Commonwealth's sole witness, Dr. Valliere, admitted that Appellant's "mental disorder was not the cause of, or any kind of ‘impetus for,’ his underlying sexual offense[,]" which was Appellant's "first and only" such crime. Id. at 18-19 (emphasis in original). Appellant also insists that Dr. Valliere did not testify that his "disorder render[s] him highly likely to commit another sexual offense[,]" but, instead, she merely opined that his disorder " facilitates re[-]offense." Id. at 19, 20 (emphasis added). For these reasons, Appellant concludes that Dr. Valliere's testimony was insufficient to constitute clear and convincing evidence that he is an SVP.

After carefully reviewing the record, we disagree. At the SVP hearing, Dr. Valliere testified as an expert in the field of sexual offender assessment. N.T. Hearing, 4/30/20, at 4-5. While Appellant did not participate in an interview with Dr. Valliere, she considered numerous documents from this case, as well as Appellant's other criminal actions, including the affidavits of probable cause, investigation reports from the SOAB, a pre-sentence investigation report, police reports, Appellant's records from the Pennsylvania Department of Probation and Parole, and information provided by the victim in this case. Id. at 6. Based on her analysis, Dr. Valliere opined that Appellant meets the statutory definition of an SVP. Id. at 8. More specifically, she concluded that Appellant suffers from antisocial personality disorder. Id. at 8-9. In support of this conclusion, she noted that Appellant has committed various offenses, demonstrating his "ability to be criminal in a variety of areas[,] which is one of the hallmarks of antisocial" personality disorder. Id. at 9.

Dr. Valliere recognized that " antisocial personality disorder [,] in and of itself[,] does not make one sexually violent...." Id. However, she explained that, "once sexual violence is added to the criminal repertoire, then antisocial personality disorder facilitates re-offense because the individual lacks the internal barriers to reoffending. So once somebody with antisocial personality disorder starts sexually assaulting other people, then it's related to risk of recidivism." Id. Pertaining specifically to Appellant, the doctor further explained:

[Dr. Valliere:] In [Appellant's] case, his sexual crime of repeatedly sexually abusing an 8-year-old child for what is an unspecified time period[,] but it looks like months[,] suggested he may have sexual arousal to children; ^[3] but in any event, the child's age was no barrier to his sex[ual] offending. So[,] he's capable of sexualizing and sexually assaulting a child even if he doesn't choose the victim because they [are] a child[,] like someone who's sexually aroused [by] children. So[,] that's his diagnosis.

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[The Commonwealth:] [Appellant] has no prior criminal history of sexual offending; however, notwithstanding that, you believe that he is likely to reoffend or possibly reoffend based on his antisocial personality disorder ?

[Dr. Valliere:] Yes. He does have a significant prior history of violence against females, and his sexual assault of an available child may be an indication that clearly he does not regard the rights of others very readily[,] and has violated Protection From Abuse Orders. So, like I said, he may not have targeted a child in particular, but he is willing to violate other people violently and for his own gratification. Now it has extended into the sexual realm[,] which makes his behavior more likely to occur than someone who did not have antisocial personality disorder.

Id. at 10.

Contrary to Appellant's argument on appeal, Dr. Valliere's testimony was sufficient to constitute clear and convincing evidence that he suffers from antisocial personality disorder and is likely to reoffend. She explained that his disorder was the impetus for his committing the offense in this case, as well as his past criminal activity. Dr. Valliere also opined that once an...