J-S62008-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

GERALD CARROL CLARK

Appellant No. 58 MDA 2016

Appeal from the Judgment of Sentence June 16, 2014

In the Court of Common Pleas of Adams County

Criminal Division at No(s): CP-01-CR-0001094-2013

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

MEMORANDUM BY JENKINS, J.: FILED SEPTEMBER 02, 2016

Gerald Clark appeals from his judgment of sentence following his guilty 

plea for failure to comply with the registration requirements applicable to 

sexual offenders and indecent assault. Clark contends that the court erred 

by declaring him a sexually violent predator (“SVP”).1 We affirm.

On January 17, 2014, Clark entered a negotiated plea agreement for a 

sentence of an aggregate term of six years and three months to fifteen 

years’ imprisonment. The court continued the sentencing hearing in order 

for the Pennsylvania Sexual Offenders Board (“Board”) to evaluate whether 

Clark qualified as an SVP under the Sexual Offender Registration and 

Notification Act (“SORNA”), 42 Pa.C.S. § 9799.10 et seq. Following the 

____________________________________________

1 18 Pa.C.S. §§ 4915.1 and 3126(a)(7), respectively.
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Board’s assessment, the Commonwealth filed a notice of intention to classify 

Clark as an SVP.

On June 16, 2014, the court held a classification hearing. The parties 

stipulated to the qualifications of the Board’s examining physician, Dr. 

Robert Stein, and the results of Dr. Stein’s examination. Clark, represented 

by counsel, did not present any evidence. Based upon this evidence, the 

Court found that Clark was an SVP.

Clark did not file a direct appeal but did file a timely Post Conviction 

Relief Act2 petition alleging that his attorney was ineffective for failing to 

perfect a timely direct appeal. On December 21, 2015, the court granted 

Clark’s petition and reinstated his direct appeal rights nunc pro tunc. Clark 

then filed a timely notice of appeal, and both Clark and the court complied 

with Pa.R.A.P. 1925. 

Clark raises the following issues in this appeal:

1. Was the evidence insufficient to find [] Clark to be [an SVP]?

2. Was [] Clark’s sentence illegal, when he was sentenced to five 

to ten year for a second failure to register pursuant to Megan’s 

Law when the Supreme Court’s holding in Neiman made [] 

Clark’s prior failure to register conviction unconstitutional?

3. Was [] Clark’s due process rights violated by depriving him of 

a jury on the issue of whether or not he was [an SVP]?

4. Was [] Clark’s due process rights violated by depriving him of 

proof beyond a reasonable doubt?

____________________________________________

2 42 Pa.C.S. § 9541 et seq.
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5. Was [] Clark illegally sentenced though the [SVP] section of 

Megan’s Law that is constitutionally vague?

6. Are assessment provisions of Megan’s Law, which require that 

[] Clark give testimony against himself or suffer a negative 

inference unconstitutional?

Brief For Appellant, at 5.

Clark’s first argument requires us to review whether the evidence was 

sufficient to classify him as an SVP. An SVP is a 

person who has been convicted of a sexually violent offense as 

set forth in [42 Pa.C.S.] section 9799.14 (relating to sexual 

offenses and tier system)] and who is determined to be a 

sexually violent predator under [42 Pa.C.S.] section 9799.24 

(relating to assessments) due to a mental abnormality or 

personality disorder that makes a person likely to engage in 

predatory sexually violent offenses.

42 Pa.C.S. § 9799.12. A “mental abnormality” is “[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. “Predatory” conduct is “an act 

directed at a stranger or at a person with whom a relationship has been 

instituted, established, maintained, or promoted, in whole or in part, in order 

to facilitate or support victimization.” Id. The “salient inquiry for the trial 

court is the identification of the impetus behind the commission of the crime, 

coupled with the extent to which the offender is likely to reoffend.” 

Commonwealth v. Dixon, 907 A.2d 533, 536 (Pa.Super.2006). However, 
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the risk of re-offending is but one factor to be considered when making an 

assessment; it is not an “independent element.” Commonwealth v. 

Morgan, 16 A.3d 1165, 1170–72 (Pa.Super.2011) (citations omitted).

When the defendant is convicted of an offense listed in 42 Pa.C.S. § 

9799.14, the trial court orders the Board to evaluate whether to recommend 

classifying the defendant as an SVP. Commonwealth v. Hollingshead, 

111 A.3d 186, 189 (Pa.Super.2015). The evaluator whom the Board selects 

to perform the assessment must weigh the following 15 factors: whether the 

instant offense involved multiple victims; whether the defendant exceeded 

the means necessary to achieve the offense; the nature of the sexual 

contact with the victim(s); the defendant’s relationship with the victim(s); 

the victim(s)’ age(s); whether the instant offense included a display of 

unusual cruelty by the defendant during the commission of the offense; the 

victim(s)’ mental capacity(ies); the defendant’s prior criminal record; 

whether the defendant completed any prior sentence(s); whether the 

defendant participated in available programs for sexual offenders; the 

defendant’s age; the defendant’s use of illegal drugs; whether the defendant 

suffers from a mental illness, mental disability, or mental abnormality; 

behavioral characteristics that contribute to the defendant’s conduct; and 

any other factor reasonably related to the defendant’s risk of reoffending. 

42 Pa.C.S.A. § 9799.24(b). It is not necessary for all factors, or any 
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particular number of them, to be present to support an SVP designation. 

Commonwealth v. Feucht, 955 A.2d 377, 381 (Pa.Super.2008).

The Board must submit its written assessment to the district attorney, 

42 Pa.C.S. § 9799.24(c), who then files a praecipe to schedule an SVP 

hearing. 42 Pa.C.S. § 9799.24(e)(1). The Commonwealth has the burden 

at the hearing of proving by clear and convincing evidence that the 

defendant is an SVP. 42 Pa.C.S. § 9799.24(e)(3). The Commonwealth 

meets its burden by submitting 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.” 

Commonwealth v. Meals, 912 A.2d 213, 219 (Pa.2006). 

Our standard and scope of review is well-settled:

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.

Hollingshead, 115 A.3d at 189.

Here, Clark’s crime of indecent contact for the purpose of arousing 

sexual desire with a child under the age of 13 is a sexually violent offense 

under section 9799.14. On multiple occasions in August 2013, Clark lowered 

the clothing of a 12-year-old female while she was sleeping, and the girl’s 
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mother observed Clark rubbing the girl’s naked buttocks. During a forensic 

interview, the girl indicated that Clark had been touching her “private area” 

on a nightly basis for approximately one month before being observed by 

the child’s mother. At the time of this crime, Clark was already required to 

register as a sexual offender due to a sex offense conviction in Maryland in 

2003. Charging documents from the Maryland offense included allegations 

that Clark digitally penetrated the vaginal area of a thirteen-year-old girl. 

At the time of the present offense, Clark had a prior conviction on 

October 21, 2008 under 18 Pa.C.S. § 4915 for failing to register as a sex 

offender. 

The only evidence submitted during the SVP hearing was Dr. Stein’s 

report. Dr. Stein opined that Clark is an SVP based on multiple section 

9799.24 factors. Dr. Stein observed that the victim’s age (12) and the 31-

year age difference between Clark and the victim were consistent with 

sexual deviance. Clark also had (1) a history of illegal drug use; (2) a

history of noncompliance with prior sentences, including one prior failure to 

register as a sex offender; and (3) a prior sex offense against a young girl in 

Maryland in 2003. Dr. Stein opined that Clark’s history was consistent with 

a paraphilic disorder, i.e., an intense and persistent sexual interest in other 

than physically mature, consenting partners whose satisfaction has entailed 

personal harm to others. This disorder, Dr. Stein concluded, is a lifetime 

condition which is not curable and overrode emotional/volitional control, and 
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there is a likelihood that Clark will re-offend in the future if permitted 

unsupervised contact with young girls. Dr. Stein also determined Clark’s 

multiple acts of sexually touching a minor child served to promote a sexually 

victimizing relationship and constituted “predatory” behavior under the Act. 

Having carefully reviewed the evidence, we agree with the trial court 

that the Commonwealth provided clear and convincing evidence that Clark is 

an SVP. Accordingly, Clark’s first argument fails.

In his second argument, Clark contends that his 2008 conviction is 

invalid because the version of Megan’s Law then in effect (Megan’s Law III) 

was held unconstitutional in Commonwealth v. Neiman, 84 A.3d 603 

(Pa.2013). Thus, Clark concludes, his designation as an SVP is invalid 

because it rests upon his illegal 2008 conviction. 

This argument fails because Clark cannot use this appeal to make a 

collateral attack on his 2008 conviction. “Any collateral attack [on an] 

underlying conviction must be raised in a petition pursuant to the Post 

Conviction Relief Act ... The PCRA provides the sole means for obtaining 

collateral review of a judgment of sentence.” Commonwealth v. Infante, 

63 A.3d 358, 365 (Pa.Super.2013). 

We will examine Clark’s final four arguments together. Clark argues 

that SORNA is unconstitutional because it deprives him of his right to a jury, 

deprives him of proof beyond a reasonable doubt, is unconstitutionally 

vague, and requires him to testify against himself. Pennsylvania courts have 
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consistently held that a statute may only be found to be unconstitutional if it 

clearly, palpably, and plainly violates constitutional rights. Commonwealth 

v. Pennybacker, 121 A.3d 530, 533 (Pa.Super.2015). The challenger 

bears a heavy burden of persuasion to show the statute is unconstitutional, 

because there is a strong presumption that legislative enactments do not 

violate the Constitution. Id. 

SORNA does not violate Clark’s constitutional due process rights. 

Pennsylvania courts have previously held that Megan Law’s and SORNA’s 

registration, notification, and counseling requirements are not punitive in 

nature and are constitutional. Commonwealth v. Williams, 832 A.2d 962 

(Pa.2003); Commonwealth v. Perez, 97 A.3d 747 (Pa.Super.2014). 

Registration requirements are merely “a collateral consequence of a 

conviction.” Commonwealth v. Leidig, 956 A.2d 399, 406 (Pa.2008). 

Because SORNA does not constitute criminal punishment, it does not require 

proof beyond a reasonable doubt, entitle Clark to trial by jury, or violate his 

right against self–incrimination.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/2/2016