J
- S56006
- 15

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA, 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 Carmich ael, 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 th e Superior Court.J
- S56006
- 15

- 2
-

Entry Numbe r 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 th e 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 tria l 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 Commonwea lth 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 convict ed 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 personalit y 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 de gree 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 commissi on 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 th e 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 def endant’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 numbe rs 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 suppor t 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 rea sonable 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 sa tisfied.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 do ubt. 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 c redibility 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 courtJ
- 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 pro v ed 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 e x perts 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 PENNS Y L V ANIA : IN THE COURT OF COMMON PLEAS, : DAUPHIN COUNTY, PENNSYLVANIA

:· NO. 4127 CR 2013 

### v. Circulated 09/30/2015 11:37 AM1 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 off

e nses. The factors that.must be considered pursuant to 42 Pa.C.S.A. 9799.24 are: is a patt e rn 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 AM3 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 AM4 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 se x ual 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 contribut i ng 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 AM5 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_.._ 7 

# H , ~ ·~ Hon

. Deborah E. Curcillo lf6.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 i n caught in the act. The defendant clearly has 

### some . sort of nonconsent paraphilia that puts others at beha v ior continued for roughly 5 months, and showed no signs of stopping e x cept 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 I n the present case, while there was contradictory expert testimony, this Court 464, 476, 781 A.2d 1172, 1179 (2001) (quotingL e ssnerv. 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 convinc i ng as t o enable the [trier of fact] to come to a clear conviction, without hesitancy , of "The clear and convincing standard requir e s evidence that is "so clear , direct, weighty , really an o v erall issue." in their relationship so it is not a "pervasive appetite where resistance, forcing, the nonconsent, is ,. 

# . Circulated 09/30/2015 11:37 AM1 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 Viol e nt 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 Indec e nt Assault' , agreement to Rape - Forcible Compulsion', Sexual Assault', Statutory Sexual Assault', Indecent (hereinafter Appellant). Procedurally, App e llant 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) MICHAE L CLOWARD : CRIMINAL MATTER COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS, : DAUPHIN COUNTY, PENNSYLVANIA

: 183 MD 2015 : 4127 CR 2013 

### v. Circulated 09/30/2015 11:37 AM2 ""'3 

### c» C:' c:::.,
. . 

# - r 

## ,.... "'1!j f'T1 c:: r.T:'il 

### :::c ;. o~ ~,.. · "'O (IQ 

### ~ "'r'j ff

· c:;;:r.: I o '"'Il e : 

### f"11 ':rE -,- "' 

### w . ~c=;r-:

... ....... 

### C.lrr-1<. :.e!C''.'l ""O ' P,.0 ., f ""

· :7&: .•o o ..: .. . 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 Gettl e , Esq., Dauphin County District Attorney's Office I 

# I b · Wendy J

. F. Grella, Esq., 1119 N. Fro n t Street, Suite 1, Harrisburg, PA 17102 

### YYTC1 

# i 

# I Dated : Deborah E. Curcillo, Judge Respectfully submitted: Order o f January 8, 2015, be affirmed. Accordingly, we request that Appellant's appeal in this matter be dismissed a n d that our d i rected by the Supe ri or Court of P e nnsylvania. Post-Trial Motion. Therefore, we will submit nothing further regardin g 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