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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CARLOS MANUEL PAGAN

Appellant :

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:

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:

:

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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 781 MDA 2020

Appeal from the Judgment of Sentence Entered August 29, 2019

In the Court of Common Pleas of Berks County Criminal Division at

No(s): CP

- 06

- CR

- 0001226

- 2019

BEFORE: BENDER, P.J.E., NICHOLS, J., and McCAFFERY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 10, 2020

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 indecen t

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.

_________________ __________ ______ ____ _______

1 Following Commonwealth v. Muniz , 164 A.3d 1189 (Pa. 2017), and

Commonwealth v. Butler , 173 A.3d 1212 (Pa. Super. 2017) (“ Butler I ”), rev’d

, 226 A.3d 972 (Pa. 2020) (“ Butler II ”), the Pennsylvania General Assembly

amended the prior version of SORNA (“SORNA I”) by enacting Act 10 on

February 21, 2018, and Act 29 on June 12, 2018, which are collectively known

as “SORNA II.” See Act of Feb. 21, 2018, P.L. 27, No. 10 (“Act 10”); Act ofJ

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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. 20 16)

(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) c oncise statement of errors complained of on

_________________ __________ ______ ____ _______

June 12, 2018, P.L. 140, No. 29 (“Act 29”). SORNA II now divides sex

offenders into two subchapters: (1) Subchapter H, which applies to an

offender who committed a sexually violent offense on or after Dec ember 20,

2012 (the date SORNA I became effective); and (2) Subchapter I, which

applies to an individual who committed a sexually violent offense on or after

April 22, 1996, but before December 20, 2012, whose period of registration

has not expired, or who se registration requirements under a former sexual

offender registration law have not expired.J

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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 C ommonwealth adduced legally insufficient

(unclear and unconvincing) evidence to support a finding th at

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 life time[] registration requirements of

Subchapter H of [SORNA II] constitute a n illegal sentence that

violates the due process clause of the [United States] and

[Pennsylvania] Constitutions because they are impermissibly

punitive, based on an irrebuttable fals e presumption, and do not

require a finding of guilt beyond a reasonable doubt[?]

[II I .] Whether Subchapter H’s provisions[ ,] regarding automatic

lifetime[] registration requirements, demonstrated earlier in

Appellant’s brief to be unconstitutionally puniti ve, are not

severable from its provisions regarding r equirements 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 sufficien cy 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 suffi ciency of the evidence claim, we view all evidence and

reasonable inferences therefrom in the light most favorable to the

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2 The trial court thereafter filed an order directing Appellant to file a Rule

1925(b) statement. Appellant did not file any amended/supplemental

statement in r esponse. We view his premature Rule 1925(b) statement as

satisfying the court’s order.J

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Commonwealth. We will reverse a trial court’s determination

of SVP status only if the Commonwealth has not presented clear

and convinc ing 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 p erson

should be classified as a n SVP . An SVP is defined as a

person who has been convicted of a sexual ly 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 sh ow 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 men ace to

the health and safety of other persons. Moreover, there

must be a showing that the defendant’s conduct was

pre datory.... Furthermore, in reaching a determination, we

must examine the driving force behind the commission of

these acts, as well as looki ng at the offender’ s propensity to

reoffend, an opini on 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.

H ollingshead

, 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 theJ

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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 c ommit 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 we ll 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 victimJ

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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 recognize d that “antisocial personality disorder[,] in and of

itself[,] does not make on e 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

_________________ __________ ______ ____ _______

3 The facts considered by Dr. Valliere (to which Appellant does not object)

included statements by the victim’s mother that she entered “her daughter’s

bedroom” on the night of her 8 th birthday and found Appellant “kneeling by

the bed” and “whispering to the victim.” Sexually Violent Predator

Assessment, 11/20/19, at 2 . “When [Appellant ] saw [the] mother standing

there, he ‘jumped to his feet,’ acting very nervous.” Id. The victim’s mother

took her into another room, at which point the victim said that Appellant “wasJ

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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.

***

[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 individual

with antisocial personality disorder commits an act of sexual violence, it

_________________ __________ ______ ____ _______

touching her genitals and it was not the first time.” Id. During a subsequent

forensic interview, the victim “disclosed that [Appellant] had assaulted her by

touching her genitals over her clothing on the night he was arrested. ... She

also stated that [Appellant] had touched her ‘lots of times’ during the ‘same

time.’ She said, ‘He keeps doing this to me, the same thing each time.’” Id.

Additionally, t he victim’s father told police that they saw Appellant “every now

and then,” with the last visit being about three months before the assault in

this case. Id.J

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heightens their risk of recommitting sexual offenses. When asked if Appellant

was likely to reoffend based on his antisocial personality disorder, the doctor

answered in the affirmative. Therefore, Appellant’s challenge to the

sufficiency of the evidence to support his SVP designation is meritless. 4

Appellant’s next three issues all attack the validity of the lifetime

registration requirements set forth in SOR NA II’s Subchapter H and, thus, we

will address these issues together. At the outset , we observe that Appellant

does not directly challenge the validity of the SVP registration requirements

of Subchapter H, which apply to him. Instead, he attacks the constitutionality

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4 We note th at Appellant’s comparison of his case to Commonwealth v.

Plucinski , 868 A .2d 20 (Pa. Super. 2005), is misplaced. There, we vacated

Plucinski’s SVP designation because his “offenses did not involve multiple

victims, unnecessary means, threats, or unusual c ruelty[,]” it was Plucinski’s

first sexual offense, he had no history of failed treatment, and his age

suggested a decreased likelihood of reoffending. Id. at 25. We concluded

that these factors “did not clearly and convincingly show the existence of a

m ental abnormality or personality disorder that makes [Plucinski] likely to

engage in future predatory sexual behavior.” Id. ( citation and internal

quotation marks omitted). However, our Supreme Court has effectively

overruled Plucinski by expressly disap proving of the comparative weighing

of the assessment factors set forth in 42 Pa.C.S. § 9795.4(b) in reviewing a

sufficiency challenge to an SVP determination. See Commonwealth v.

Meals , 912 A.2d 213, 220 (Pa. 2006) (“ To the extent the Superior Court pane l

majority approa ched its task by comparing and ‘weighing’ Section 9795.4

factors not present here

... against those circumstances whose presence the

trial court cited as supporting its SVP finding, the panel majority plainly e rred.

The error in the ... ‘comp arative’ approach is not merely a function of the

limitation inherent in appellate sufficiency review, which should have confined

the court to an assessment of those factors which supported the SVP finding,

b ut also a function of the panel’ s failure to app reciate the testimony below and

the practical operation of the statute, as revealed by that testimony. ”); see

also Commonwealth v. Morgan , 16 A.3d 1165, 1173 (Pa. Super. 2011)

(recognizing that Meals effectively overruled Plucinski ). Thus, Plucinski

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of the non

- SVP , lifetime registration provisions of Subchapter H. Specifically,

he claims that those registration requirements are unconstitutional because

“they are impermissibly punitive, based on an irrebut t able false presumption,

... do not require a finding of guilt beyond a reasonable doubt[,]” and

constitute cruel and unusual punishment. Appellant’s Brief at 14, 15.

Appellant then insists that the non

- SVP provisions of Subchapter H cannot be

severed from the remainder of the statute, thus rendering Subchapter H

unconstitutional in its entirety. In this roundabout way, Appellant concludes

that his registration requirements under the SVP provisio ns of Subchapter H

are invalid.

Appellant’s argument fails for several reasons. First, because Appellant

does not claim that he is subject to any of Subchapter H’s non

- SVP registration

requirements, he lacks standing to challenge the constitutionality o f those

provisions

. See Commonwealth v. McCoy , 895 A.2d 18, 31 n.8 (Pa. Super.

2006) (“An individual launching a constitutional challenge to a statute must

be injured by it.”); Commonwealth v. Dodge , 429 A.2d 1143, 1146 (Pa.

Super. 1981) (providing that a defendant “does not have standing to object

to the constitutionality of a statute unless he is affected by the particular

feature alleged to be in conflict with the constitution”).

Second, even if Appellant did have standing to attack the non

- SVP

provisio ns of Subchapter H , he has waived those claims for our review. I n

Appellant’s Rule 1925(b) statement, he set forth one issue pertaining to his

registration requirements: “The lifetime sex offender registration isJ

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unconstitutional under the Eighth Amendment of the United States

Constitution and Article I § 13 of the Pennsylvania Constitution. The lifetime

registration requirement is also illegal, as it is punitive and/or exceeds the

statutory maximum sentence for the offenses [for which Appellant] was

convicted.” Pa.R.A.P. 1925(b), 5/26/20, at 1 (single page). Given that

Appellant is subject to an SVP lifetime registration requirement under

Subchapter H, his failure to specify in his Rule 1925(b) statement that he is

attacking the constitutionality of the non

- SVP lifetime registration

requirement of the statute waives that claim for our review. See Pa.R.A.P.

1925(b)(4)(vii). 5 Appellant also did not specifically state , in his Rule 1925(b)

statement, his present argument that the os tensibly unconstitutional, non

SVP registration requirements are not severable from the SVP provisions of

Subchapter H

, thereby rendering the statute unconstitutional in its entirety.

As such, that claim is also w aived. 6

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5 We note that the trial court’s order informed Appellant that any issue not

included in his concise statement would be deemed waived. See Order,

6/1/20, at 1 (single page); Greater Erie Indus. Development Corp. v.

Presque Isle Downs, Inc.

, 88 A.3d 222, 225 (Pa. Super. 2014) ( en banc )

( “[I]n determining whether an appellant has waived his issues on appeal

based on non

- compliance with Pa.R.A .P. 1925, it is the trial court’ s o rder that

triggers an appellant’ s obligation [.] ... [T] herefore, we l ook first to the

language of that order.” ) (citations omitted).

6 We recognize that an appellant cannot waive a challenge to the legality of

his sentence. See Commonwealth v. Dickson , 918 A.2d 95, 99 (Pa. 2007).

However, Subchapter H’s non

- SVP registrati on requirements have not been

imposed upon Appellant. As such, his challenge to the constitutionality of

those provisions does not implicate the legality of his sentence.J

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Third, to the extent Appellant’s constitutional attacks on Subchapter H

could be viewed as implicating his SVP registration requirements, we are

bound by Butler II to conclude that those provisions are constitutional.

There, our Supreme Court held that the registration, notification, and

counseling requirements imposed by SORNA I on SVP offenders “do not

constitute criminal punishment.” Butler II

, 226 A.3d at 992. Consequently,

the Butler II Court concluded that “the procedure for designating individua ls

as SVPs under Section 9799.24(e)(3) is not subject to the requirements of

Apprendi [ v. New Jersey , 530 U.S. 466 (2000), 7 ] and Alleyne [ v. U.S.

,

570 U.S. 99 (2013), 8 ] and remains constitutionally permissible.” Id. at 976.

Following Butler II , this Court has held that the SVP registration

requirements set forth in the revised Subchapter H of SORNA II are also not

punitive and may be constitutionally applied. See Commonwealth v.

Manzano , 237 A.3d 1175 , 1179 (Pa. Super. 2020) (“[I]n light of th e Supreme

Court’s decision in Butler II , we conclude that because SVP adjudication is

not criminal punishment, the trial court did not err in designating [Manzano]

a[n] SVP under SORNA II.”) (citing Commonwealth v. Groner

, 233 A.3d

807, 809 (Pa. Super. 2020) (“In light of our Supreme Court’s decision in

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7 Apprendi held that, “[o] ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt. ” Id. at

490.

8 Alleyne holds that “facts that increase mandatory minimum sentences must

be submitted to the jury” and f ound beyond a reasonable doubt. Id. at 106.J

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Butler II

, we conclude SORNA II’s [registration, notification, and counseling]

requirements for SVPs

— essentially unchanged from those in SORNA [I]

— are

likewise non

- punitive, such that its procedural framework for designating SVPs

by clear and convincing evidence does not run afoul of Apprendi or

Alleyne .”)).

Following Butler II and Manzano , it is clear that Appellant’s SVP

registration requirements under Subchapter H of SORNA II are valid. To the

extent he attempts to attack Subchapter H’s non

- SVP registration provisions,

he lacks standing to do so, and/or has waived those specific claims for our

review.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/10/2020J

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