J-S78025-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DAVID RICHARD HAMMAKER

Appellant No. 849 MDA 2014

Appeal from the Order Entered May 1, 2014

In the Court of Common Pleas of Perry County

Criminal Division at No(s): CP-50-CR-0000258-2013

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

MEMORANDUM BY JENKINS, J.: FILED JANUARY 27, 2015

Appellant David Richard Hammaker appeals from the order issued by 

the Perry County Court of Common Pleas finding Appellant was a sexually 

violent predator (“SVP”) within the meaning of the Sex Offender Registration 

and Notification Act (“SORNA”), 42 Pa.C.S. §§ 9799.11, et seq.

1

 We affirm.

Appellant was charged with multiple offenses arising from the sexual 

assault of his son. On January 9, 2014, he entered a nolo contendere plea 

____________________________________________

1 SORNA is also known as Megan’s Law. The trial court and parties cite 42 

Pa.C.S. § 9791, et seq., a prior version of SORNA. Our legislature, however, 

amended SORNA, effective December 20, 2012, and repealed the prior 

statutory provisions. This memorandum cites to the current version, which 

was in effect at the time of the May 1, 2014 SVP hearing and sentencing. 

The SVP provisions at issue in this decision did not substantially change from 

the prior version.
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to one count of indecent assault.2 The Sexual Offenders Assessment Board 

(“SOAB”) conducted an assessment of Appellant and issued a report 

recommending that the trial court find Appellant to be an SVP. 

On May 1, 2014, the trial court held an SVP hearing and a sentencing 

hearing. The court found Appellant was an SVP and sentenced him to 20 to 

84 months’ incarceration. The court also found Appellant was subject to 

SORNA’s lifetime registration requirement. 

On May 7, 2014, Appellant filed a timely notice of appeal. Both 

Appellant and the trial court complied with Pennsylvania Rule of Appellate 

Procedure 1925.

Appellant raises the following issue on appeal:

Whether the trial court’s conclusion that Appellant is [an 

SVP] under Megan’s Law is supported by sufficient

evidence.

Appellant’s Brief, at 3.

If a defendant is convicted of a sexually violent offense, a trial court 

must order the SOAB to assess the defendant to determine whether to 

classify him as an SVP. 42 Pa.C.S. § 9799.24(a)-(b).3 The SOAB then 

prepares a report and submits it to the Commonwealth. 42 Pa.C.S. § 

____________________________________________

2 18 Pa.C.S. § 3126(a)(7).

3 The trial court and parties cite 42 Pa.C.S. § 9795.4 as the provision 

governing assessments. Effective December 20, 2012, however, § 9799.24 

addresses SVP assessments. Section 9795.4 was repealed.
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9799.24(b), (d); accord Commonwealth v. Feucht, 955 A.2d 377, 380 

(Pa.Super.2008). Upon praecipe from the Commonwealth, the court will 

conduct a hearing. 42 Pa.C.S. § 9799.24(e). At the hearing, the 

Commonwealth must prove the defendant is an SVP by clear and convincing 

evidence. 42 Pa.C.S. § 9799.24(e)(3); accord, Feucht, 955 A.2d at 380. 

An SVP is an individual convicted of an enumerated offense “who . . . 

is determined to be [an SVP] under section 9799.24 (relating to 

assessments) due to a mental abnormality or personality disorder that 

makes the individual likely to engage in predatory sexually violent offenses.” 

42 Pa.C.S. § 9799.12. Indecent assault is an enumerated offense. 42

Pa.C.S. § 9799.12; 9799.14(d)(8).

SORNA discusses the factors the SOAB must consider in preparing an 

SVP assessment and provides:

An assessment shall include, but not be limited to, an 

examination of the following:

(1) Facts of the current offense, including:

(i) Whether the offense involved multiple victims.

(ii) Whether the individual exceeded the means 

necessary to achieve the offense.

(iii) 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.
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(2) Prior offense history, including:

(i) The individual’s prior criminal record.

(ii) Whether the individual completed any prior 

sentences.

(iii) Whether the individual participated in available 

programs for sexual offenders.

(3) Characteristics of the individual, including:

(i) Age.

(ii) 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.

42 Pa.C.S. § 9799.24(b). The statute defines a mental abnormality as:

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.

42 Pa.C.S. § 9799.12. 

There is no requirement that all factors “or any particular number of 

them be present or absent in order to support an SVP designation.” Feucht, 

955 A.2d at 381. “The factors are not a checklist with each one weighing in 

some necessary fashion for or against SVP designation. Rather, the 

presence or absence of one or more factors might simply suggest the 
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presence or absence of one or more particular types of mental 

abnormalities.” Id. (internal citations omitted). The court must determine 

whether the Commonwealth established that “the person convicted of a 

sexually violent offense has a mental abnormality or disorder making that 

person likely to engage in predatory sexually violent offenses.” Id.

On May 1, 2014, the court held an SVP hearing. At the SVP hearing, 

Dr. Robert Stein, a licensed psychologist and a member of the SOAB, 

testified. N.T., 5/1/2014, at 3. Dr. Stein stated Appellant chose not to be 

evaluated. He based his report on a review of the file, which included a 

report by the board investigator, an order from the court, a response from 

defense counsel, the criminal information and affidavit of probable cause, 

investigative reports, Children and Youth Services reports from this case and 

from an unfounded prior case, ChildLine reports, reports from the Dauphin 

County District Attorney’s Office on two prior cases, adult probation records, 

child support information, and a pre-sentence investigation. Id. at 6-7. 

Dr. Stein discussed each of the fifteen factors the SOAB must consider 

when preparing a report pursuant to 42 Pa.C.S. § 9799.24(b). He noted the 

offense involved only one victim and Appellant did not exceed the means 

necessary to achieve the offense. N.T., 5/1/2014, at 8. Dr. Stein found the 

nature of the sexual contact particularly relevant, noting that because the 

acts included “oral sex with a young boy, it would be consistent with a 

pedophilic disorder, a disorder that involves sexual interest and acts with a 

young child.” Id. Dr. Stein noted the victim was Appellant’s biological son, 
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which was consistent with sexual deviance, and noted the victim’s age, 7, 

was consistent with pedophilic disorder. Id. Dr. Stein found there was 

unusual cruelty because Appellant forced the victim to consume semen, and 

the victim became sick. Id. Dr. Stein also noted the victim suffers from 

“some psychiatric conditions, at least some of which are possibly due to the 

abuse.” Id.

Dr. Stein then noted that Appellant’s prior offense history included a 

sex offense, which was consistent with a sustained period of sexual 

deviance, and noted there was a history of probation revocation. N.T., 

5/1/2014, at 9. Dr. Stein did not have information suggesting Appellant 

received sex offender counseling. Dr. Stein noted Appellant was 

approximately 48 years old when the acts started, which was consistent with 

a sexual deviance disorder. Id.

Dr. Stein stated that Appellant did not use illegal drugs, his behavioral 

history was consistent with a disorder of sexual deviance, i.e., a pedophilic 

disorder, and Appellant had a possible alcohol abuse problem. N.T., 

5/1/2014, at 9. Dr. Stein then stated that “having a prior sexual criminal 

history and having a male victim are all associated statistically with 

increased risk.” Id.

Dr. Stein also discussed his findings. He first discussed whether 

Appellant suffered from a condition that was the impetus of the sexual 

offense. N.T., 5/1/2014, at 10. Dr. Stein found Appellant had a pedophilic 

disorder, and stated that “a disorder of this kind of sexual deviance is not a 
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curable condition, there were repeated sexual urges for this young boy that 

[Appellant] either would not or could not control; given this history, there is 

sufficient evidence that if given unsupervised access to children at some 

point in his life, there would be some form of sexual misconduct.” N.T., 

5/1/2014, 11-12. He noted there were “acts of oral sex to ejaculation with a 

young child. Even a single such act would make one strongly suspect a 

pedophilic disorder, that is sustained sexual interest in a young child.” Id. 

He noted the victim was unable to specify a time frame, 

but he detailed multiple counts of getting sick from semen 

in his mouth. He talked about statements that were made 

to him that were grooming statements, statements having 

to do with drinking juice, meaning semen. While he stated 

acts occurred a thousand times, it’s understood that this 

was a young boy saying this and that it was an 

exaggeration, but it is indicative of numerous occurrences 

even though we do not have an exact number. 

Id., at 10-11. Dr. Stein stated there was a past report involving an eightyear old girl, which did not result in a conviction, and a prior criminal 

conviction for sexual assault against Appellant’s thirteen-year-old niece. 

Id., at 11. He noted there were other allegations of sexual misconduct that 

the report did not rely upon but would be of concern in a clinical context. 

N.T., 5/1/2014, at 11. Dr. Stein concluded to a reasonable degree of 

medical certainty that pedophilic disorder was the impetus to the sexual 

offending. Id., at 11-12.

Dr. Stein next opined as to whether the acts were predatory, which is 

“an act that is either directed at a stranger, or if it is a familiar person, if a 
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relationship has been promoted for victimization.” N.T., 5/1/2014, at 12. 

Dr. Stein found Appellant groomed4the victim with verbal statements, 

including attempts to convince the victim that semen was “juice.” Id. at 12-

13. Dr. Stein noted repeated molestation “in this manner promotes a 

sexually victimizing relationship consistent with predatory behavior as the 

statute defines it.” Id. at 13. Dr. Stein concluded that Appellant should be 

classified as an SVP. N.T., 5/1/2014, at 13.

Appellant’s counsel cross-examined Dr. Stein. Dr. Stein stated that 

there was a “slight decrease” in the likelihood of recidivism as individuals 

age. N.T., 5/1/2014, 14-15. Dr. Stein agreed that, although there were 

other allegations of sexual abuse, Appellant had only one other sexual 

offense conviction, which involved a thirteen-year-old female. Id., at 16-18. 

Further, Dr. Stein testified that, pursuant to the Diagnostic and Statistical 

Manual of Mental Disorders, 5th ed. (“DSM-V”), a diagnosis of pedophilic 

disorder requires six months or more of fantasies, urges, or behaviors 

involving a prepubescent child. Id. at 19. He testified, however, that “the 

time period acknowledged by the DSM-V is arbitrary and it is subject to the 

judgment of the individual reviewing the case.” Id., at 21. He opined that:

[B]ased on the seriousness of the act, the seriousness of 

the grooming behavior, that there was some period of time 

____________________________________________

4

 Dr. Stein defined grooming as “anything that is done to a child to make it 

easier to break down that child’s defenses for molestation.” N.T., 5/1/2014, 

at 12. 
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over which such deviant sexual interest would have 

developed. We don’t know the exact period of time. 

There [was] more . . . than one act in this case. The 

child’s account suggests many acts, although I can’t put a 

number on it. It is my clinical judgment that there has 

been a lengthy period of time over which such deviant 

sexual interest has been harbored by the Defendant, I 

can’t put an exact figure on the number of weeks or 

months or years that he has had this interest.

Id. at 22. 

The Commonwealth submitted Dr. Stein’s report into evidence. N.T., 

5/1/2014, at 27.5

The court entered the following findings on the record:

On January 9, 2014, following [Appellant’s] nolo plea to 

the offense of indecent assault, this [c]ourt requested the 

[SOAB] to conduct an evaluation and assessment of 

[Appellant]. . . . 

On May 1, 2014, this [c]ourt conducted a hearing per the 

Commonwealth’s praecipe. At the hearing, Robert M. 

Stein, Ph.D., from the [SOAB], offered an opinion that 

[Appellant] should be certified as [an SVP]. This [c]ourt 

accepts that testimony as credible. The [c]ourt finds the 

Commonwealth has met its burden of proof by clear and 

convincing evidence that [Appellant] is [an SVP]; 

wherefore, the [c]ourt enters the following order: . . . and 

now, May 1, 2014, the [c]ourt finds on clear and 

convincing evidence that [Appellant] is [an SVP] within the 

meaning of 42 Pa.C.S.A §§ [9799.12], et seq. 

As to the Megan’s Law registration, the [c]ourt is entering 

the following findings of fact: number one, [Appellant] has 

been convicted of indecent assault, a sexually violent 

offense as defined in 42 Pa.C.S.A. § [9799.12]; number 

____________________________________________

5 Although admitted into evidence, the report is not contained in the original 

record.
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two, the number of victims is one; number three, 

[Appellant] did not exceed the means necessary to achieve 

the offense; number four, the nature of the sexual conduct 

with the victim was oral sex; number five, the relationship 

of [Appellant] to the victim was that of biological father; 

number six, the age of the victim was between six and 

seven at the time of the offense; number seven, the 

offense did include a display of unusual cruelty by the 

individual during the commission of the crime; number 

eight, the mental capacity of [the victim],6[the victim’s] 

mental capacity has been impacted by the acts performed 

upon him in that [the victim] has several mental illness 

diagnoses; number nine, [Appellant’s] prior criminal record 

does include a crime of sexual assault being corruption of 

minors; number ten, [Appellant] has completed a prior 

sentence; however, a prior sentence was revoked due to a 

parole violation or probation violation, . . . ; number 

eleven, the [c]ourt has no knowledge as to whether or not 

the individual participated in available programs for sexual 

offenders; number twelve, at the time of the crime, 

[Appellant’s] age was approximately 48 years old; number 

thirteen, [Appellant] did not use illegal drugs in the 

commission of the offenses; number fourteen, [Appellant] 

does have mental illness, disability or mental abnormality 

as stated by the [SOAB] report; number fifteen, behavioral 

characteristics that contribute to the individual’s conduct, 

the Court believes that [Appellant] suffers from some form 

of alcohol abuse which may have contributed to his 

conduct, although there is no specific testimony as to 

whether or not drugs were used during the commission of 

the offense; . . . 

After analysis of the above factors and recognizing the 

legal requirements that the Commonwealth must prove by 

clear and convincing evidence that [Appellant] is [an SVP], 

the [c]ourt reaches the following conclusions of law; 

number one, [Appellant] does suffer from a mental 

____________________________________________

6

In referring to factor eight, the trial court referred to Appellant’s mental 

capacity. The factor, however, refers to the victim’s mental capacity and, at 

the conclusion of the hearing, the court clarified that it had referred to the 

victim, not Appellant, in its findings. N.T., 5/1/2014, at 35.
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abnormality or personality disorder that makes him likely 

to engage in predatory sexual violent offenses; number 

two, [Appellant], therefore, is found to be [an SVP] within 

the meaning of Megan’s Law.

N.T., 5/1/2014, at 32-35.

Appellant challenges the sufficiency of the evidence regarding the trial 

court’s determination that he was an SVP. Appellant’s Brief, at 3. He argues 

Dr. Stein’s report and testimony did not constitute competent expert 

evidence and was inadmissible. Appellant’s Brief, at 10-12. Appellant, 

therefore, claims the trial court’s SVP determination was not supported by 

sufficient evidence.

When reviewing the sufficiency of the evidence of an SVP 

determination:

[W]e will reverse the trial court only if the Commonwealth 

has not presented clear and convincing evidence sufficient 

to enable the trial court to determine that each element 

required by the statute has been satisfied. In most cases, 

we will determine whether the record supports the findings 

of fact made by the trial court and then review the legal 

conclusions made from them. However, in cases . . . 

where the trial court has stated its legal conclusions but 

has not provided specific findings of fact, we will review 

the entire record of the post-conviction SVP hearing as our 

scope of review is plenary. 

Commonwealth v. Moody, 843 A.2d 402, 408 (Pa.Super.2004) (quoting 

Commonwealth v. Krouse, 799 A.2d 835, 837-38(Pa.Super.2002)). We 

will reverse the designation if, “based on all of the evidence viewed in a light 

most favorable to the Commonwealth an SVP classification cannot be made 
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out in a clear and convincing manner.” Id. (quoting Krouse, 799 A.2d at 

837-38). Clear and convincing evidence means:

[W]itnesses must be found to be credible, that the facts to 

which they testify are distinctly remembered and the 

details thereof narrated exactly and in due order, and that 

their testimony is so clear, direct, weighty, and convincing 

as to enable the jury to come to a clear conviction, without 

hesitancy, of the truth of the precise facts in issue.

Moody, 843 A.2d at 408 (quoting In re Fickert's Estate, 337 A.2d 592, 

594 (Pa.1975)).

Here, the Commonwealth relied upon the SOAB assessment report and 

the testimony of Dr. Stein to prove Appellant was an SVP. The sentencing 

court found Appellant was an SVP by clear and convincing evidence. We 

agree. 

Contrary to Appellant’s contention, Dr. Stein’s opinions were not mere 

speculation and conjecture. Dr. Stein reviewed the statutory factors and 

discussed the evidence submitted to him. Although Dr. Stein stated the 

DSM-V provides that a diagnosis of pedophilic disorder requires a period of 

six months or more of fantasies, urges, or behaviors, he also stated that 

“the time period acknowledged by the DSM-V is arbitrary and it is subject to 

the judgment of the individual reviewing the case.” N.T., 5/1/2014, at 21. 

He opined that:

[B]ased on the seriousness of the act, the seriousness of 

the grooming behavior, that there was some period of time 

over which such deviant sexual interest would have 

developed. We don’t know the exact period of time. 

There [was] more . . . than one act in this case. The 
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child’s account suggests many acts, although I can’t put a 

number on it. It is my clinical judgment that there has 

been a lengthy period of time over which such deviant 

sexual interest has been harbored by the Defendant, I 

can’t put an exact figure on the number of weeks or 

months or years that he has had this interest.

Id. at 22. Dr. Stein supported his conclusions with the evidence and stated 

that his conclusions were within a reasonable degree of medical certainty. 

Dr. Stein’s testimony constituted competent evidence and the trial court 

properly adopted the findings. 

The record, including the testimony of Dr. Stein, supports the trial 

court’s factual findings and its legal conclusions. The court did not err in 

finding the Commonwealth established Appellant was an SVP.7

Order affirmed. 

____________________________________________

7 To the extent Appellant’s brief challenges the weight of the evidence, the 

claim is waived and the argument fails. Commonwealth v. Fuentes, 991 

A.2d 935, 944-45 (Pa.Super.2010) (finding the SOAB assessment report 

constituted evidence and any challenges thereto affect the weight, not the 

sufficiency, of the evidence). Appellant waived the claim when he failed to 

raise it in a post-sentence motion. Commonwealth v. Barnhart, 933 A.2d 

1061, 1066 (Pa.Super.2007) (finding appellant waived claim when not raised 

in motion for new trial or post-sentence motion). Further, the court’s 

determination that Appellant was an SVP does not shock the conscience. 

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa.2013) (“a new trial 

should be awarded when the jury's verdict is so contrary to the evidence as 

to shock one’s sense of justice and the award of a new trial is imperative so 

that right may be given another opportunity to prevail”) (quoting 

Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa.1994)).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/27/2015