J-S56006-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICHAEL CLOWARD,

Appellant No. 183 MDA 2015

Appeal from the Judgment of Sentence December 18, 2014

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0004127-2013

BEFORE: SHOGAN, JENKINS, and PLATT,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 22, 2015

Appellant, Michael Cloward, appeals from the judgment of sentence 

entered on December 18, 2014, following entry of the order designating him 

as a sexually violent predator (“SVP”). We affirm.

Ardis Carmichael, the guardian of fourteen-year-old K.V., walked in on 

Appellant, Ardis’s thirty-two-year-old boyfriend, as he was raping the child 

on July 21, 2013. Affidavit, 7/21/13. On June 19, 2014, pursuant to a 

negotiated plea agreement, Appellant pled guilty to one count each of rape, 

sexual assault, statutory sexual assault, involuntary deviate sexual 

intercourse, unlawful contact with a minor, corruption of a minor, and two 

counts of aggravated indecent assault. Negotiated Plea Agreement, Docket 

____________________________________________

*

 Retired Senior Judge assigned to the Superior Court.
J-S56006-15

- 2 -

Entry Number 40. Sentencing was deferred pending completion of an 

evaluation concerning whether Appellant met the criteria to be classified as 

an SVP. On August 20, 2014, the Commonwealth filed a praecipe for an SVP 

hearing, which occurred on December 18, 2014. Dr. Robert Stein, a 

member of the Sexual Offender Assessment Board (“SOAB”), testified on 

behalf of the Commonwealth, and Dr. Timothy P. Foley testified on behalf of 

Appellant. The Commonwealth and Appellant stipulated that both witnesses 

were experts in the area of assessment and treatment of sexual offenders. 

N.T., 12/18/14, at 4–5.

Following the hearing, the trial court designated Appellant an SVP and 

issued an opinion explaining its rationale. The trial court sentenced 

Appellant in accordance with the plea bargain to an aggregate sentence of 

seven to fifteen years of imprisonment, followed by ten years of probation. 

Appellant filed a post-sentence motion on December 29, 2014, which was 

denied on January 8, 2015. This timely appeal followed. The trial court did 

not direct Appellant to file a statement pursuant to Pa.R.A.P. 1925.

Appellant raises the following single issue for our review:

I. Whether the trial court erred in classifying defendant as a 

sexually violent predator (SVP) when the Commonwealth failed 

to provide the clear and convincing evidence necessary for such 

a classification as per Title 42 Pa.C.S. §9794.5?
J-S56006-15

- 3 -

Appellant’s Brief at 5 (full capitalization omitted).1

This Court has explained the SVP determination process as follows:

After a person has been convicted of an offense listed in 42 

Pa.C.S.A. § 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 re-offending is but one factor to 

be considered when making an assessment; it is not an 

independent element.

Commonwealth v. Hollingshead, 111 A.3d 186, 189–190 (Pa. Super. 

2015) (quoting Commonwealth v. Stephens, 74 A.3d 1034, 1038–1039 

____________________________________________

1

 Appellant’s issue assails the sufficiency and weight of the evidence 

supporting the trial court’s classification. It is not, as Appellant suggests sub 

silencio by the inclusion in his brief of a statement pursuant to Pa.R.A.P. 

2119(f), a challenge to the discretionary aspects of sentence.
J-S56006-15

- 4 -

(Pa. Super. 2013) (internal quotation marks, ellipses, and citations 

omitted)).2

When performing an SVP assessment, a mental health professional 

must consider the following fifteen 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; the defendant’s relationship with the victim; the victim’s age; 

whether the instant offense included a display of unusual cruelty by the 

defendant during the commission of the offense; the victim’s mental 

capacity; the defendant’s prior criminal record; whether the defendant 

completed any prior sentence; 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. 

____________________________________________

2

 While the trial court’s Pa.R.A.P. 1925 (a) opinion makes a brief reference 

to Megan’s Law, we note that the Megan’s Law provisions expired on 

December 20, 2012, 42 Pa.C.S. §§ 9791–9799.9, and the Sexual Offender 

Registration and Notification Act (“SORNA”) became effective in its place. 42 

Pa.C.S. §§ 9799.10–9799.41. SORNA governed Appellant’s SVP hearing 

that occurred on December 18, 2014. 42 Pa.C.S. § 9799.13. While the 

statutory section numbers changed with the enactment of SORNA, the 

standards governing the expert witness assessment for the SVP hearing 

remained substantially the same. Commonwealth v. Prendes, 97 A.3d 

337, 346 (Pa. Super. 2014), appeal denied, 105 A.3d 736 (Pa. 2014).
J-S56006-15

- 5 -

§ 9799.24(b). Dr. Stein utilized the statutory factors as well as the 

diagnostic tool known as the Diagnostic and Statistical Manual (“DSM-V”). 

N.T., 12/18/14, at 6, 14. He testified that Appellant “exercised his right to 

not participate” in the evaluation. N.T., 12/18/14, at 6. Dr. Foley utilized 

the statutory factors and Static-99R, “an actuarially derived prediction tool 

used to measure sexual offense risk.” Appellant’s Brief at 16. There is 

nothing in the record indicating that Appellant participated in Dr. Foley’s 

evaluation.

This Court has stated that it is not necessary for every statutory factor 

to be present in order to sustain an SVP classification:

[T]here is no statutory requirement that all of them 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. 2010)]. Thus, “the Commonwealth does not have to 

show that any certain factor is present or absent in a particular 

case.” Id.

Commonwealth v. Prendes, 97 A.3d 337, 358–359 (Pa. Super. 2014), 

appeal denied, 105 A.3d 736 (Pa. 2014).

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.
J-S56006-15

- 6 -

Commonwealth v. Baker, 24 A.3d 1006, 1033 (Pa. Super. 2011). 

Because an SVP assessment is not a trial or a separate criminal proceeding 

that subjects the defendant to additional punishment, SVP status does not 

require proof beyond a reasonable doubt. Commonwealth v. Howe, 842 

A.2d 436, 445–446 (Pa. Super. 2004). “Rather, the court decides SVP 

status upon a show of clear and convincing evidence that the offender is, in 

fact, an SVP.” Prendes, 97 A.3d at 358 (citing Commonwealth v. 

Killinger, 888 A.2d 592, 600 (Pa. 2005)). Moreover, “[a]n expert’s opinion, 

which is rendered to a reasonable degree of professional certainty, is itself

evidence.” Prendes, 97 A.3d at 356 (quoting Commonwealth v. Fuentes, 

991 A.2d 935, 944 (Pa. Super. 2010) (en banc) (emphasis in original)).

Appellant’s argument is a summary of the various findings described 

by the expert witnesses. Appellant concludes that Dr. Foley’s testimony 

proves that Appellant is not an SVP. Appellant’s Brief at 17. The trial court 

made a credibility determination and chose to believe Dr. Stein over 

Dr. Foley. We may not disturb that credibility determination. 

Hollingshead, 111 A.3d at 194 (where trial court determined credibility of 

expert, this Court may not disturb trial court’s finding).

The trial court carefully weighed all of the statutorily mandated factors 

and concluded that clear and convincing evidence demonstrated that 

Appellant is an SVP. We ascertain no error of law or abuse of discretion in 

this determination. Accordingly, we affirm the order of the trial court 
J-S56006-15

- 7 -

designating Appellant a sexually violent predator based upon the trial court’s 

thorough opinion and order in support of its determination filed on 

January 8, 2015, which it incorporated into its Pa.R.A.P. 1925 opinion.

3

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/22/2015

____________________________________________

3

 The parties are directed to attach a copy of the opinion in the event of 

further proceedings in this matter.
makes the person a menace to the health and safety of other persons." Id. Moreover, predatory is 

1 of 

manner that predisposes that person to the commission of criminal sexual acts to a degree that 

acquired condition of a person that affects the emotional or volitional capacity of the person in a 

sexually violent offenses." 42 Pa. C.S.A. § 9799.12. A mental abnormality is "a congenital or 

abnormality or personality disorder that makes the individual likely to engage in predatory 

42 Pa.C.S.A. § 9799.24(e)(3). A sexually violent predator is someone "who ... is determined to 

be a sexually violent predator under section 9799.24 (relating to assessments) due to a mental 

has proved by clear and convincing evidence that the individual is a sexually violent predator." 

"At the hearing prior to sentencing, the court shall determine whether the Commonwealth 

a sexually violent predator. 

post-sentence motion to modify the sentence was filed asking this court to determine he was not 

reports and testified. · The parties stipulated to the fact that they were both experts in the field. A 

(SVP). Two experts, Dr. Robert Stein and Dr. Timothy Foley, assessed the Defendant submitted 

as a sexually violent predatory, this Court did find Defendant to be a sexually violent predator 

On December 18, 201:4, following a hearing to determine whether to classify Defendant 

Sentence Motion, it is HEREBY ORDERED that the Motion is DENIED. 

. ORDER OF COURT 

uJ,1,l . . AND NOW, this_()_·_· day of January, 2015, upon consideration of Defendant's PostMICHAEL CLOW ARD 

: CRIMINAL MATTER 

COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS, 

: DAUPHIN COUNTY, PENNSYLVANIA 

v. :· NO. 4127 CR 2013 

Circulated 09/30/2015 11:37 AM
1 Hereinafter "N.T." 

2 of 

Fifth Edition (DSM-V) is the authority for psychiatric diagnosis. This edition contains the 

attraction to post-pubescent minors). The Diagnostic and Statistical Manual of Mental Disorders, 

whether defendant suffers from a paraphilic disorder of non consent or hebephilia ( sexual 

Both experts agreed that the Defendant did exhibit a pattern of predatory behavior. (Notes 

of Testimony, December 18, 20141, p. 12-13; 32). In this case, the experts disagreed over 

1) Facts of the current offense, including: 

1. Whether the offense involved multiple victims. 

ii. Whether the individual exceeded the means necessary to achieve the offense. 

111. 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: 

1. The individual's prior criminal record. 

11. Whether the individual completed any prior sentences. 

111. Whether the individual participated in available programs for sexual offenders. 

3) Characteristics of the individual, including: . 

1. Age. 

11. 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. · 

sexual offenses. 

The factors that.must be considered pursuant to 42 Pa.C.S.A. 9799.24 are: 

is a pattern of predatory behavior and whether there is a mental abnormality that is relevant to 

. . 

Sexual Offenders Assessment Board (SOAB) reviews fifteen factors to determine whether there 

established or promoted for the primary purpose of victimization." 

defined as "[a]n act directed at a stranger or at a person with whom a relationship has been 

' t 

"•\ \ 

At issue in this case, is whether the Defendant suffers from a mental abnormality. The 

Circulated 09/30/2015 11:37 AM
3 of 

diagnosis "Other Specified Paraphilic Disorders" in place of the DSM-N diagnosis of Paraphilia 

NOS. (Defendant's Exhibit 1, pp. 3-4). 

Paraphilic disorder of nonconsent is sustained interest in nonconsenting sex. · 

(Commonwealth's Exhibit 1, p. 5). Dr. Stein testified specifically, that a level of force was used · 

during the attacks. Notably, on at least three occasions, the victim bled as a result of the attacks, 

she resisted to the point of biting him and the defendant would either hold her mouth shut or hold 

' a pillow over her mouth so that she could not yell for him to stop or breathe. (N.T. 7-8). He 

contended that these means exceeded the force necessary to achieve the offense. Dr. Foley. 

disagreed with this assessment of these actions as excessive force. Id. at 43. 

At the time of the attacks, the victim was 14 and the defendant was about ,33. He was the 

· boyfriend of the victim's guardian and would att1;1ck the victim whenever the guardian was not 

present. Id. at 8. The attacks only stopped because the guardian caught the Defendant in the act 

ant called the police. Id. 

The nature of the sexual contact with the victim was repeated forcible sexual assault. Id. 

at 9. Not only was the victim unable to consent by virtue of her age, she also was nonconsenting 

inher behavior - again she resisted the attacks. Id. 

The attacker was the boyfriend of the victim's guardian. Id. at 10. He most likely had a 

caretaker role with the victim and it is more traumatizing toe a victim if a caretaker attacks you. 

Id. He lived with the guardian and the victim for several years. 

The victim was 14 at the time of the attacks. Dr. Stein testified that it may be consistent 

with deviate sexual interests, but in this case, the major issue is the force used and not the age of 

the victim. Id. 

(~. ' 

Circulated 09/30/2015 11:37 AM
4 of 

. ' 

Dr, Stein also testified that while he might not use the phrase "unusual cruelty" these 

were brutal attacks with some aspects of cruelty. Id. 

The victim does have a number of behavioral issues that may or may not be related to 

prior sexual assaults. Id. There was no prior criminal history other than a prior drug charge that 

was dismissed. Id. at 11. The Defendant was 32 or 33 at the time of the attacks. He was 

significantly older than the victim. Id. 

There was no information regarding any use of illegal drugs and no information 

regarding any mental illness or disability. There were no other behavioral characteristics 

contributing to the Defendant's conduct Id. 

Finally, according to Dr. Stein, there are some statistical risk factors. Engaging in 

sexualized aggression while under the age of 35 is statistically associated with increased risk of 

recidivism.1d. He did admit that as the defendant was about 33 at the time of the attacks, he was 

on the cusp of that particular association. Id. at 19. 

Generally, other nonspecific paraphilic disorder requires a six-moth criterion of duration 

to make a diagnosis. Dr. Stein testified that in this case, the attacks lasted somewhere between 5 

and 6 months, thus this case was on the borderline. However, he testified that given that the acts 

did not stop of their own accord, but rather because Defendant was caught, there is every reason 

to believe the attacks would have persisted for the necessary 6 month period Id. at 12-14. 

Further, Dr. Stein testified that the DSM-V allows for clinical judgment in situations where the 

diagnosis does not technically meet all the requirements. Id. at 15. · 

Dr. Stein reviewed Dr. Foley's report which indicated a diagnosis of hebephilia. Dr. 

Stein testified that in a laboratory setting most adult men will show arousal towards a picture of a 

naked teenager; however in this case, he did not diagnose hebephilia because of the use of force. 

Circulated 09/30/2015 11:37 AM
5 of 

.. ' . 

Id. at 16-17. Dr. Stein testified that had the victim been older and age not an issue, the repeateduse of force in the attacks would indicate he was a sexually violent predator. Id. at 17. He 

further testified that the age was an aggravating factor in this case and not a factor for diagnostic 

purposes. Id. 

Dr. Stein also acknowledged that a single victim as opposed to multiple victims is 

associated with a lesser risk. Id at 20. 

Dr. Foley testified that his understanding of the statute was that is required some 

assessme?t of the likelihood of future sexual misconduct. Id. at 34. He performed the Static 99 

test to help him determine this. Id. This test is based on the records of approximately 25,000 

sexual offenders after release into the community. It is atheoretical - it is statistically driven. Id. 

Dr. Foley indicated that the SOAB does use this test in parole hearings but not in _SVP 

determination hearings. Id. at 35. However, the Static 99 doesnot take into account how many 

times the assaults occurred, the age of the victim; nor the level of force used. Id. at 45-46. 

Dr. Foley used all the same information that Dr. Stein used and also reviewed the 

victim's Children & Youth Reports. He found the case to be pretty unusual in that the defendant 

acknowledged it had been going on for about 5 months, whereas the victim was unclear in how 

long it had been going on. Id. at 35-36. Dr. Foley further testified that sex offense recidivism 

declines as a function of age; particularly in rapecases where the frequency of recidivism 

· declines by about 50 percent between 25 and 45. Id. at 37-38. Dr. Foley considered the 

defendant's age at his time of release and the treatment he had completed post-guilty :plea, 

whereas Dr. Stein did not. Id. at 24-25, 38. 

Dr. Foley indicatedthat he did not believe there was a disorder of the sexual appetite that 

could not otherwise be satisfied. Id. at 40. Defendant's significant other reported no use of force 

Circulated 09/30/2015 11:37 AM
.,.,.,l 

t '., 

I 

t· 

6 of 

Distribution: 1-CJ-/d eJ_.._7H,~ ·~ 

Hon. Deborah E. Curcillolf6.l/ 

Clerk of Courts ~ - Wendy Grella, Esq., f1JJlJ, 

Jennifer Gettle, Esq., Dauphin County District Attorney's Office .:to 

Deborah E. Curcillo, J. 

:?. c: 

.. ~ C.)c: 

, .... 

9? 

BY THE COURT: 

--- 

. ~ .,, 

this case. 

risk upon his release from incarceration. Continuous monitoring and treatment are appropriate in 

caught in the act. The defendant clearly has some.sort of nonconsent paraphilia that puts others at 

behavior continued for roughly 5 months, and showed no signs of stopping except that he was 

unhesitatingly found that the defendant was a sexually violent predator. The repeated use of 

force against a minor who was actively resisting him indicates more than just hebephilia. This 

In the present case, while there was contradictory expert testimony, this Court 

464, 476, 781 A.2d 1172, 1179 (2001) (quotingLessnerv. Rubinson, 527 Pa .. 393: 400, 592 A.2d 

678, 681 (1991))." Com. v. Maldonado, 576 Pa. 101, 109, 838 A.2d 710, 715 (2003). 

the truth of the precise facts (in] issue." Rohm and Haas Co. v. Continental Cas. Co., 566 Pa. 

and convincing as to enable the [trier of fact] to come to a clear conviction, without hesitancy, of 

"The clear and convincing standard requires evidence that is "so clear, direct, weighty, 

really an overall issue." 

in their relationship so it is not a "pervasive appetite where resistance, forcing, the nonconsent, is 

,. . Circulated 09/30/2015 11:37 AM
1 18 Pa.C.S. § 3121:(A)(l) 

2 18 Pa.C.S. § 3124.l 

3 18 Pa.C.S. § 3122.l(B) 

4 18 Pa.C.S. § 3123(A)(7) 

5 18 Pa.C.S. § 3125(A)(8) 

6 18 Pa.C.S. § 6318(A)(l) 

7 18 Pa.C.S. § 6301(A)(l)(ii) 

received a timely Notice of Appeal filed with the Superior Court of Pennsylvania. 

this Court issued a Memorandum Opinion denying the motion. On January 22, 2015, this Court 

that he should not be classified as a Sexually Violent Predator. Thereafter on January 8, 2015, 

1 

Appellant was sentence on December 18, 2014. 

On or about'December 29, 2014, Appellantfiled an optional Post-Trial Motion claiming 

18 or Above.'. Sentencing was deferred for the completion of a Megan's Law Evaluation and 

Unlawful Contact with a Minor - Sexual Offenses", and Corruption of Minors - Defendant Age 

Assault of a Person less than 16 Years of Age 4, two (2) charges of Aggravated Indecent Assault', 

agreement to Rape - Forcible Compulsion', Sexual Assault', Statutory Sexual Assault', Indecent 

(hereinafter Appellant). Procedurally, Appellant pled guilty on June 19, 2014, pursuant to a plea 

Presently before the Superior Court of Pennsylvania is the appeal of Michael Cloward 

TRIAL COURT MEMORANDUM OPINION PURSUANT TO 

PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925(a) 

MICHAEL CLOWARD 

: CRIMINAL MATTER 

COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS, 

: DAUPHIN COUNTY, PENNSYLVANIA 

: 183 MD 2015 

v. : 4127 CR 2013 

Circulated 09/30/2015 11:37 AM
2 

""'3 

C:' c» c:::., 

.. - ,.... r 

"'1!j f'T1 c:: r.T:'il :::c;.o~~,.. · "'O (IQ ~"'r'jff 

·c:;;:r.: I o '"'Ile: f"11':rE 

-,-"' w .~c=;r-: 

.......... 

:.e!C''.'l C.lrr-1<. ""O 

'P,.0 ., f"" 

·:7&: .•oo..: ... C"' 

·- c::·-,,C.·. ~.:: 

- 

·~ :;;o 

...;( . 01 -,[ 

M if, 

Distribution: J. ·-J- f '5 t r 5Dfw! 

The Superior Court of Pennsylvania IY'!a t \ 

Hon; Deborah E. CurcilloC(Q,., 

Jennifer Gettle, Esq., Dauphin County District Attorney's Office I I b · Wendy J.F. Grella, Esq., 1119 N. Front Street, Suite 1, Harrisburg, PA 17102 YYTC1 i I 

Dated: 

Deborah E. Curcillo, Judge 

Respectfully submitted: 

Order of January 8, 2015, be affirmed. 

Accordingly, we request that Appellant's appeal in this matter be dismissed and that our 

directed by the Superior Court of Pennsylvania. 

Post-Trial Motion. Therefore, we will submit nothing further regarding this matter· unless 

to post-sentencing relief, and is the basis of our January 8, 2015, final order denying Appellant's 

details the facts in this matter, provides our reasons for concluding that Appellant is not entitled · 

This Court incorporates by reference our January 8, 2015, Memorandum Opinion, which 

·A ~ l Circulated 09/30/2015 11:37 AM