J

### -S41027-17 NON-PRECEDENTIALDECISION - SEE 

### SUPERIORCOURT 

### I.O.P. 

### 65.37 COMMONWEALTH OF PENNSYLVANIA

1 IN THE SUPERIORCOURT OF PENNSYLVANIA

v. DENNY LEE RUHL Appellee



### Appellant No. 1753 MDA2016 Appeal

### fromtheOrder Entered 

### September23, 2016 In the Court ofCommon Pleas 

### of Lancaster County Criminal Division at No(s): 

### CP-36-CR-0000344-2016
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT,J.* MEMORANDUM BY LAZARUS, J.: 

### FILEDAUGUST

### 01, 

### 2017 Denny Lee Ruhl 

### ("Ruhl") appeals

### from the order, entered by 

### the Court of Common Pleas of Lancaster County on 

### September 23, 2016, which designated him a 

### Sexually Violent Predator ("SVP").1 

### After careful review,
we 

### affirm. On December 3, 2015, Ruhl was charged 

### with four counts of indecent assault,2 two counts of 

### corruption of minors,3 and 

### two counts of unlawful

* Retired SeniorJudgeassigned to

### the Superior Court.

1 42 Pa.C.S.A. § 

### 9799.24.

2 18 Pa.C.S.A. § 

### 3126(a)(7).

3 18 Pa.C.S.A. § 

### 6301(a)(1)(ii).J

### -S41027-17

contact with minors.4 Ruhl engaged in 

### various acts 

### of sexual 

### misconduct with 

### nine-year old J.E. and 

### eight-year-old P.E. 

### from February 2015 to 

### November 2015. Pursuantto a 

### negotiated plea 

### agreement, Ruhl pled 

### guilty to all counts on 

### April 25, 2016. He was sentenced to 

### two to 

### four years of incarceration, to be followed by 

### twelve years of probation. 

### Additionally, the trial court ordered Ruhl to be 

### evaluated by 

### the Pennsylvania Sexual Offenders Assessment Board ("SOAB"). Atthe

### timeofthe plea, Ruhl waived the 

### requirement 

### that his 

### evaluation be 

### completed 

### prior to sentencing 

### pursuant to 42 Pa.C.S.A. § 

### 9799.24(a)5. See 

### Commonwealth v. 

### Whanger, 30 A.3d 1212 (Pa. Super. 

### 2011) 

### (defendant can 

### waive pre- sentence 

### requirement in 

### writtencolloquy). 

### After his 

### evaluation by 

### the SOAB, 

### the Commonwealth requested a hearing to 

### establish 

### whether Ruhl should beclassified as an SVP 

### pursuantto section 

### 9799.24. The hearing was held 

### September 23, 

### 2016, and 

### the court issued an 

### order

### that same day concluding 

### that Ruhl should be classified as an SVP. Ruhl filed a 

### timely notice of appeal to 

### this Court on 

### October 20,

4 18 Pa.C.S.A. § 

### 6318(a)(1).

5 

### After conviction, but before sentencing, a 

### court shall 

### order an 

### individual convicted of a 

### sexually 

### violent offense to be assessed by 

### the SOAB. The 

### order for an assessment shall be 

### sent to 

### the 

### administrative officer of the SOAB 

### within ten days 

### of the date 

### of conviction 

### for the sexually 

### violent offense. 42 Pa.C.S.A. § 

### 9799.24(a).


## -2J

### -S41027-17

2016. Ruhlfiled his Pa.R.A.P. 

### 1925(b) 

### statement on 

### November 2, 

### 2016; the Commonwealthdid notfile a response to Ruhl's 

### statement. On appeal, Ruhl raises

### thefollowing issues

### forour review: 1. 

### Whether the evidence was 

### sufficient to establish by clear and convincing evidence

### thatthe Defendant was an SVP. 2. 

### Whetherthe Court erred in relying upon 

### the opinion of Dr. Stein, where said opinion was 

### improperly based on 

### unproven allegations (regarding T.W.) whichwere not

### partofthefactual basisto the plea. Trial CourtOpinion, at 3. An SVP is defined as: An 

### individual determined to be a 

### sexually

### violent predator under section 

### 9795.4 (relating to assessments) 

### prior to 

### the 

### effective date of 

### this subchapter or an 

### individual convicted of an offense specified in: (1) section 

### 9799.14(b)(1), (2), (3), (4), (5), (6), (8), (9) or 

### (10) (relating to sexual offenses and 

### tier system) or an 

### attempt, conspiracy or solicitation to 

### commit any offense under section 

### 9799.14(b)(1), (2), (3), (9) or 

### (10); (4), (5), (6), 

### (8), (2) section 

### 9799.14(c)(1), (1.1), (1.2), 

### (1.3),(2), (3), (4), (5) or 

### (6) or an 

### attempt, conspiracy or 

### solicitation to 

### commit an offense under section 

### 9799.14(c)(1), (1.1), (1.2), 

### (1.3),(2), (3), (4), (5) or 

### (6); or (3) section 

### 9799.14(d)(1), (2), (3), (4), (5), (6), (7), (8) or 

### (9) or an 

### attempt, conspiracy or 

### solicitation to 

### commit an offense under section 

### 9799.14(d)(1), (2), (3), (4), (5), (6), (7), (8) or (9) who, on or 

### after the 

### effective date of 

### this subchapter, is 

### determined to be a 

### sexually 

### violent predator under section



## -3J

### -S41027-17
9799.24 (relating to assessments) due to a 

### mental abnormality6 or 

### personalitydisorder

### that makes

### the individual likely to engage in 

### predatory' sexually 

### violent offenses.8 The 

### term includes an 

### individual determined to be a 

### sexually

### violentpredatoror

### similar designation where the 

### determination occurred in 

### another 

### jurisdiction, a 

### foreign country or by 

### court martial following a 

### judicial or 

### administrative determination pursuant to a process 

### similarto 

### that under section 

### 9799.24. In 

### addition, theterm shall include any person convicted between 

### January 23, 2005, and December 19, 

### 2012, of any offense set 

### forth in section 

### 9799.13(3.1) (relating to 

### applicability) determined by a 

### court to be a 

### sexually 

### violent predator due to a 

### mental 

### abnormality or 

### personality disorder 

### that made 

### the person 

### likely to engage in 

### predatory sexually 

### violent offenses, which person shall be deemed a 

### sexually

### violentpredator underthis subchapter.9 42 Pa.C.S.A. § 

### 9799.12. Pursuant to 42 Pa.C.S.A. § 

### 9799.24, after conviction but prior to 

### sentencing, a 

### trial court must order an 

### individual convicted of a 

### sexually 

### violent offense to be assessed by 

### the SOAB. Cf. 

### Whanger, supra. Once

6

### "Mental 

### abnormality" isdefined as

### "[a] congenital or acquired 

### condition of a person 

### thataffects theemotional or

### volitionalcapacity ofthe person in a 

### manner

### that predisposes

### that personto 

### thecommission ofcriminal sexual actsto a degree

### that makes

### the person a menacetothe health and 

### safetyof 

### otherpersons." 42 Pa.C.S.A. § 

### 9799.12.

7

### "Predatory" is defined as

### "[a]n act directed at a 

### stranger orat a person 

### with whom a 

### relationship has been 

### initiated, established, maintained or promoted, inwhole or in 

### part, in 

### orderto

### facilitate or

### support

### victimization." 42 Pa.C.S.A. § 

### 9799.12.

8

### "Sexually

### violentoffense is defined as

### "[a]n offensespecified in section 

### 9799.14 (relating to sexualoffenses and

### tiersystem) as a

### Tier I,Tier

### II or Tier

### III sexual 

### offense." 42 Pa.C.S.A. § 

### 9799.12.
9 Ruhl wasconvicted ofthe offenses listed in section 

### 9799.14(b)(8), section 

### 9799.14(c)(5), and section 

### 9799.14(d)(8). 

## -4J

### -S41027-17
the SOAB receives 

### the 

### court's order, the 

### administrative director appoints a 

### memberto 

### conduct an assessmentto establish

### whetherthe individual should be classified as an SVP.1° Section

### 9799.24(b) provides: An [SVP] assessment shall include, 

## butnotbe 

## limitedto, an 

### examination ofthe 

### following: (1) Facts of

### the

### currentoffense, including: (i) 

### Whetherthe offense involved 

### multiplevictims. (ii) Whether the individual exceeded 

### the means necessary to achievethe offense. 

### (iii) The 

### nature ofthe sexual 

### contactwiththe

### victim. (iv) Relationship ofthe 

### individual to 

### the

### victim. (v) Age ofthe

### victim. (vi) Whether the offense included a 

### display of unusual 

### cruelty by 

### the individual during the commission of the crime. 

### (vii) The 

### mental capacityofthe

### victim. (2) Prior offense 

### history, including: (i) The 

### individual's priorcriminal record. 

### (ii) Whether the individual completed any prior sentences. 

### (iii) Whether the individual participated in 

### available programs

### forsexual 

### offenders. (3) Characteristics ofthe 

### individual, including: (i) Age ofthe 

### 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.

10 42 Pa.C.S.A. § 

### 9799.12. 

## -5J

### -S41027-17 (4) Factors 

### that are 

### supported in a sexual 

### offender assessment field as 

### criteria reasonablyrelated to

### the riskof re

### -offense. 42 Pa.C.S.A. § 

### 9799.24(b) (emphasis added). A 

### determination of an 

### individual's SVP

### status may only be made 

### after the SOAB's assessment and hearing before 

### the 

### trial court.11 The 

### proper analysis 

### for experts testifying at an SVP hearing is 

### whether the defendants satisfy the 

### statutory definition of an SVP, 

### specifically, 

### whether they suffer from "a 

### mental 

### abnormalityor 

### personalitydisorder

### that makes

### them likelyto engage in 

### predatory sexually 

### violent offenses." 42 Pa.C.S.A. § 

### 9799.12. The 

### fact finder is 

### free to 

### reject, accept, or give some 

### weight to 

### admitted expert opinion evidence. 

### Commonwealth v. 

### Stephens, 74 A.3d 1034, 1041 (Pa. Super. 

### 2013). The 

### question 

### for the 

### trial court determining an 

### individual's SVP 

### status "is 

### whether the Commonwealth's evidence, including the Board's assessment, shows 

### that the person convicted of a 

### sexually 

### violent offense has a 

### mental 

### abnormalityor 

### disorder making

### that person 

### likelyto engage in 

### predatory sexually 

### violent offenses." 

### Commonwealth v. 

### Brooks, 7 A.3d 852, 863 (Pa. Super. 

### 2010) (citing 42 Pa.C.S.A. § 

### 9792 

### (repealed), as amended 

### 2011, Dec. 20, P.L. 

### 446, No. 111, § 12). On appeal of a 

### trial court's classification of an 

### individual as an SVP, 

### thefunction ofthe 

### Superior Court "is one of review, and not 

### of weighing and assessing evidence in 

### the

11 42 Pa.C.S. § 

### 9799.24(e). 

## -6J

### -S41027-17 

### first instance." 

### Commonwealth v. 

### Meals, 912 A.2d 213, 223 (Pa. 

### 2006). 

### "In conducting sufficiency review, we 

### mustconsiderthe evidence in 

### the 

### light most favorable to 

### the Commonwealth, which prevailed upon 

### the issue at 

### trial." 

### Id. at 218 

### (citation 

### omitted). This 

### Court will reverse a 

### trial court's determination of a 

### sexually 

### violent predator status 

### "only if the Commonwealth has not presented clear and 

### convincing evidence

### sufficientto enable 

### the

### trial courtto 

### determine

### that each

### element required by

### the 

### statute has been 

### satisfied." 

### Brooks,supra at860. In the 

### instant case, 

### the Commonwealth presented 

### testimony from Robert M. Stein, Ph.D., who conducted Ruhl's SOAB assessment. Dr. Stein concluded 

### that Ruhl 

### met the requirements 

### for SVP 

### classification because he suffered 

### from a 

### mental 

### abnormality, namely pedophilic disorder, which "describes sustained sexual 

### interest in young 

### children," and 

### that he 

### exhibited predatory behavior. N.T. SVP Hearing, 

### 09/23/16, at 

### 13-14. Dr. Stein described 

### predatory behavior as 

### "either an act directed at a 

### stranger, or, if 

### it's a 

### familiar person, 

### anything 

### that either initiates or establishes or 

### maintains or 

### promotes sexual 

### victimization." 

### Id. at 13. Here, Dr. Stein noted 

### that the evidence supported a 

### finding 

### that Ruhl's 

### multiple acts 

### of sexual 

### assault 

### "serve to 

### promote a 

### sexually 

### victimizing relationship with each 

### victim." 

### Id. at 

### 13-14. Dr. Stein concluded 

### that there was 

### sufficient evidence indicating Ruhl 

### "would re

### -offend in 

### the

### future ifgiven unsupervised
accesstoyoung 

### girls." 

### Id. at 14-15. 

## -7J

### -S41027-17
In making his 

### determination, Dr. Stein considered 

### the factors enumerated in section 

### 9799.24(b). Dr. Stein based his conclusion on 

### "the acts 

### with the children in 

### this case and 

### the 

### history provided to police 

### that there was 

### sufficient evidence 

### that [Ruhl] 'has harbored sexual 

### interest in 

### children 

### for a period of 

### greater than six 

### months.' Trial Court Opinion, 

### 12/19/16, at 8 

### (citing N.T. SVP Hearing,

### 09/23/16, at 13). Ruhl's 

### history, which was based in 

### part on uncharged conduct, is 

### what led Dr. Stein to 

### determine Ruhl's 

### behavior was 

### predatory. Dr. Stein relied
on a police 

### report from T.W., a 

### family member of Ruhl's, 

### regarding an 

### incident in 1999

### where Ruhl molested her. Ruhl was

### twenty-one atthe

### time, while T.W. was nine. N.T. SVP Hearing, 

### 09/23/16, at

### 8-9. Even 

### thoughthis incidentwas not prosecuted, Dr. Stein relied on it because during 

### the instant investigation, Ruhl told his 

### wife about the incident, the police 

### interviewed T.W., who 

### confirmed the incident, and a 

### report made to 

### Childline regarding 

### that incident was discovered. 

### Id. at 

### 8-9. Dr. Stein 

### testified 

### that had he not considered the uncharged and 

### unproven allegations by 

### victim T.W., the period of morethan six 

### months would not have applied. 

### Id. at 17. At the SVP 

### hearing, Ruhl presented 

### testimony from 

### Timothy P. Foley, Ph.D., who reviewed the 

### information given to Dr. Stein and made his own 

### report. Dr. Foley analyzed 

### the same

### factors as Dr. Stein, butconcluded 

### that Ruhl was not an SVP. 

### Specifically, he 

### testified 

### that his 

### opinion differed 

### from Dr. Stein's because ofthe 

### weight given to the previous 

### allegations in 1999. 

## -8J

### -S41027-17
Dr. Foley did notbelieve Ruhl had a sustained 

### interest in

### children to 

### render a diagnosis 

### of pedophilic disorder based on 

### the few incidents 

### reported in 

### this
case 

### over a

### short period 

### oftime. Thus, he could not conclude

### that Ruhl had

a 

### mental 

### abnormality. Dr. Foley 

### testified 

### that he did not consider 

### the incident in 1999 to make his 

### determination because he would not rely on hearsay allegations 

### that did not 

### result in 

### criminal charges in 

### forming his decision.12 

### Ultimately, Dr. Foley concluded 

### that Ruhl was not an SVP because he believed Ruhl 

### "was less 

### than 

### likely" to reoffend in 

### the 

### future based on his 

### Static-99 score.13 N.T. SVP Hearing, 

### 09/23/16, at 37. 

### After careful consideration of the 

### reports of both Dr. Stein and Dr. Foley, as well as all ofthe evidence presented by both 

### parties, the

### trial court concluded 

### thatthe evidence presented by

### the Commonwealth was 

### sufficient to prove by clear and convincing evidence

### that Ruhl was an SVP. The 

### trial courtgave more

### weight to Dr. Stein's 

### testimony than Dr. Foley's, as well as to Pennsylvania 

### statutory and decisional law, 

### which: does not 

### require an actual psychological diagnosis in 

### order for there to be a 

### mental 

### abnormality which would classify an 

### individual as a 

### Sexually

### Violent Predatoror 

### that any assessment tool, such as 

### the Static-99, 

### must be 

### utilized in lieu of clinical

12 The charges Ruhl plead 

### guilty to occurred between February 2015 to 

### November2015, which is a period of

### greater than six 

### months.

13 The 

### Static-99 is an 

### actuarial risk assessment tool 

### that compares an 

### individual to 

### 30,000 people on a 

### number of 

### factors and is 

### correlated with recidivism percentages over five to ten years. 

### See N.T. SVP Hearing, 

### 09/23/16, at 11. 

## -9J

### -S41027-17 

### judgmentto 

### determinewhether a 

### defendant is less 

### like[ly] to re- offend. Trial Court Opinion, 

### 12/19/16, at 10. Ruhl alleges 

### that the evidence before the 

### court was not clear and convincing as to 

### whether he suffered 

### from a 

### mental 

### abnormalitythat would make him 

### likelyto 

### commit predatorysexually

### violent offenses in 

### the

### future. To 

### support this 

### argument, Ruhl relies on a 

### contradiction in Dr. 

### Stein's 

### testimony regarding his reliance on 

### the unproven allegations 

### from 1999 to achieve 

### the 

### six-month time period necessary 

### for a medical diagnosis 

### of pedophilicdisorder. Wefind Ruhl'sclaim is 

### meritless. The

### trial court clarified 

### this inconsistency. Dr. Stein explained 

### that his response to 

### the 

### cross-examination question at issue was 

### meant to 

### indicate 

### thatwithoutthe 

### six-month timeframe he would not be ableto give a medical diagnosis 

### of pedophilia. N.T. SVP Hearing, 

### 12/09/16, at 

### 30-31. The 

### term 

### "mental 

### abnormality," as used in section 

### 9799.12, however, 

### "is a 

### creation of 

### statute and not a medical 

### diagnosis." Trial Court Opinion, 

### 12/19/16, at 11. Thus, 

### the 

### trial court and Dr. Stein both resolved 

### that even if

### the 

### six-month period

### for pedophilic

### disorder was not 

### metand no 

### consideration was given to 

### the unproven allegations 

### from the 1999 

### incident, the facts of

### this case 

### still 

### support a conclusion 

### that Ruhl has a 

### mental 

### abnormality, as defined by 

### statute. Ruhl also claims 

### that the 

### trial court erred in relying on Dr. 

### Stein's opinion because his opinion was based on 

### the unproven allegations from 

### the

- 10 -J

### -S41027-17
1999 

### incidentwith T.W.,which were not 

### part ofthefactual basis 

### of his plea. In reviewing a challengeto an SVP

### determination, this Court must 

### "examine all ofthe evidence adduced by

### the Commonwealth, 

### 'without consideration as to 

### the 

### admissibility of 

### that 

### evidence.' Meals, 912 A.2d at 224, fn. 14 

### (quoting 

### Commonwealth v. 

### Smith, 568 A.2d 600, 603 (Pa. 

### 1989)). A 

### sufficiency of the evidence challenge to an SVP 

### determination "requires the reviewing 

### court to accept the 

### undiminished record of 

### the case in 

### the 

### light most favorable to 

### the 

### Commonwealth." 

### Id. at 218. 

### Furthermore, Pennsylvania law makes 

### apparent 

### that in 

### determining SVP 

### status, an 

### evaluator is not 

### restricted to 

### the

### fifteen factors listed in 

### the 

### statute. See42 Pa.C.S.A. § 

### 9799.24(b) ("An 

### assessment shall include, 

## butnot be

## limited to[...]") (emphasis added); 

### see

### also

### Commonwealth v. 

### Prendes, 97 A.3d 337, 360 (Pa. Super. 

### 2014) (noting 

### "[t]he statute governing the SVP assessment does not 

### limit the 

### expert's consideration of information only to 

### that admitted at

### trial oratthe 

### guilty plea 

### proceedings"). Ruhl also claims 

### that other experts in 

### the field would not 

### rely on 

### unproven allegations to make an SVP

### determination. Appellants Brief, at 18. In 

### Prendes, this Court held 

### that SOAB 

### expert opinions fall 

### within the general rules 

### of 

### expertwitnesses. 

### Prendes, 97 A.3d 

### at 

### 360-361. Thus, an SOAB 

### expert's opinion may be based on facts or data he or she has been made aware 

### of or personally observed as long as 

### experts in 

### the field 

### reasonably rely on those kinds offacts or data in 

### forming an opinion on 

### theJ

### -S41027-17 subject. 

### Id. The facts or data 

### the 

### expert used need not be 

### admissible 

### for the 

### expert's opinion to be 

### admitted. See Pa.R.E. 702, 703 The SOAB 

### expert mustalso 

### statethefacts or data onwhich his 

### or heropinion is based. 

### See Pa.R.E. 705. 

### Thereafter, the rules of evidence place 

### the burden of exposing any weaknesses in 

### the 

### expert's opinion on opposing counsel. 

### Prendes, 97 A.3d at 361 

### (citing 

## In re D.Y. 34 A.3d 177, 183 (Pa. Super. 

### 2011)). Here, Dr. Stein's 

### report outlines the criteria he used in reaching his opinion and 

### the basis 

### for his opinion in accordance 

### with the rules of evidence. N.T. SVP Hearing, 

### 12/09/16, at 6. Ruhl argues 

### that because Dr. Foley did not rely on 

### the police 

### reports ofthe non

### -adjudicated incident, this shows

### that it is not 

### typical

### for otherexperts in 

### the field to 

### rely on such data. This claim is 

### without merit. Showing 

### that one 

### expert did not 

### rely on such data does not prove 

### other experts in 

### the field do not 

### reasonably 

### rely on it. 

### Additionally, by agreeing to 

### the 

### introduction of Dr. 

### Stein's 

### report and 

### failing to raiseany

### objection to itsadmission before the

### trial court, Ruhl waived any 

### argument 

### that Dr. 

### Stein's 

### report was 

### improperly based on 

### unproven allegations 

### thatwere not a 

### part of his 

### guilty plea. 

### See

### Commonwealth v. 

### Baker, 24 A.3d 1006, 1034 (Pa. Super. 

### 2011). The 

### Commonwealth presented clear and convincing evidence 

### sufficient to allowthe 

### trial courtto 

### determine

### that Ruhl should be classified as an SVP.

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### -S41027-17
The

### trial court did not

### err by relying on Dr. 

### Stein's opinion, which was based in 

### part on uncharged allegations. 

### Accordingly, we 

### affirm the

### trial courtorderclassifying Ruhl as an SVP. Order

### affirmed.
Judgment Entered. 

# / J seph D. 

### Seletyn, Prothonotary
Date: 

### 8/1/2017

- 13 -