J-S35018-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

AUSTIN TEXAS HOUSTON KELLEY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 271 MDA 2022

Appeal from the Judgment of Sentence Entered January 20, 2022

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

No(s): CP-21-CR-0003462-2018

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY McLAUGHLIN, J.: FILED JANUARY 24, 2023

Austin Texas Houston Kelley appeals from the judgment of sentence 

entered following his convictions for three counts of unlawful contact with a 

minor; two counts each of indecent assault, criminal solicitation to commit 

statutory sexual assault, and criminal trespass; and one count each of 

burglary, involuntary deviate sexual intercourse, aggravated indecent assault, 

and statutory sexual assault.1 Kelley argues the trial court erred in denying 

his motion to sever, permitting the Commonwealth to present expert 

testimony on the dynamics of sexual violence, and determining that he was a 

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

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 6318(a)(1), 3126(a)(8), 902(a), 3503(a)(11), 3502(a)(i), 

3123(a)(7), 3125(a)(8), 3122.1(a)(1), respectively.
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The Commonwealth filed one Information, listing charges related to 

three victims. On August 27, 2019, the parties informed the court that the 

case was ready for trial, and the court scheduled trial for September 9, 2019.

On August 27, the Commonwealth indicated to Kelley’s counsel that she would 

seek to introduce expert testimony. Omnibus Pre-Trial Motion, filed Sept. 5, 

2019, at ¶ 10. The following day, August 28, 2019, the Commonwealth 

provided written notice of its intent to present expert testimony on

“generalities with regard to sexual offender/predator behaviors.” Motion to 

Continue Pretrial/Trial, filed Sept. 4, 2019, at Exh. A. The Commonwealth 

stated in the written notice that it was late because the parties had been 

working toward a plea agreement and, therefore, “there [had been] no need 

to pursue the retention of an expert.” Id. The Commonwealth attached to the 

notice a copy of the expert’s curriculum vitae and stated it would forward a 

report when it received one. Id. Kelley filed an unopposed motion to continue, 

which was granted.2

In September 2019, Kelley filed an omnibus pre-trial motion, which he 

later amended. The omnibus motion included, among other things, a motion 

to sever and a motion to preclude the expert testimony.

____________________________________________

2 Trial originally was rescheduled for November 2019, but, following additional 

continuances, did not occur until October 2020.
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The parties submitted briefs regarding the motion to sever. The trial 

court summarized the alleged facts from the hearing on the pretrial motion to 

sever as follows:

[I]n August 2016, [Kelley] met M.M. at the Midway Skating 

Rink when she was approximately 14 years old. He then 

communicated with her via social media, utilizing the screen 

name “Superman100” on Facebook, and referring to himself 

as a “superhero.” On February 9, 2017, [Kelley] went to 

M.M.’s house, and entered through her bedroom window; 

he did not have her parents’ permission to be in the home. 

While M.M. denies any sexual contact between her and 

[Kelley], her father did see [Kelly] in M.M’s bed.

[Kelley] also met 15-year-old K.W. at the Midway Skating 

Rink in August of 2016, following which he communicated 

with her as “Superman.” Around the same time period, 

[Kelley] met 14-year-old S.B. at the Midway Skating Rink, 

and began an ongoing sexual relationship with her, which 

lasted for approximately eight months.

On one particular occasion, March 12, 2017, [Kelley] 

climbed in the window of S.B.’s bedroom, while K.W. was 

visiting S.B. [Kelley] was watching a movie on S.B.’s bed 

with the two girls, when he attempted to kiss K.W., saying 

he was a superhero and would “save her.” He touched her 

butt and breasts, and put his hands and mouth on her 

vagina; K.W. became very uncomfortable and moved to the 

floor. [Kelley] and S.B. then engaged in sexual conduct on 

S.B.’s bed.[1]

1 Since his arrest, [Kelley] and S.B. have continued to 

correspond in writing, with [Kelley] continuing to 

utilize his “superhero” persona.

Trial Court Opinion, filed Oct. 7, 2020, at 1-2.

The trial court denied the motion to sever. It found the Commonwealth 

had demonstrated the existence of a common scheme, plan, or design, the 

evidence would support a finding of Kelley’s intent, and the jury would be 
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capable of avoiding confusion. It also found the consolidation would not unduly 

prejudice Kelley. Id. at 4-5.

In the motion to preclude the expert testimony, Kelley claimed, among 

other things, that the Commonwealth provided its notice of expert testimony 

late, which hindered his ability to respond to the testimony. He also argued 

that the proposed basis of the testimony was “likely to be confusing, vague, 

and [was] not opinion testimony relevant to the facts of [the] case.” Amended 

Omnibus Pre-Trial Motion, filed Nov. 7, 2019, at ¶ 11. At the hearing, Kelley 

again argued the testimony was not relevant and would be confusing to the 

jury. N.T., Oct. 14, 2020, at 24. The Commonwealth asserted it informed 

Kelley of its intention to present expert testimony after defense counsel 

certified the case for trial, stating that the late notice was due to the 

Commonwealth’s impression the case would be resolved by plea agreement.

The trial court summarized the testimony from the hearing on the expert 

testimony as follows:

At a hearing on the expert witness issue, testimony was 

received from the Commonwealth’s proposed expert, 

Matthew Shollenberger, Ph.D., P.C., and two 

Commonwealth exhibits were admitted in the form of his 

curriculum vitae and his report.

Dr. Shollenberger testified that he was a sex offender 

counselor, with a Ph.D. in counseling, who had been working 

with sex offenders for 25 years, had been approved as a 

provider by Pennsylvania’s Sexual Offenders Assessment 

Board since 2002, and had presented expert testimony in 

court hundreds of times. The gist of his opinions of 

pertinence to the present case was contained in a report 

dated September 17, 2019:
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This letter is a very brief summary of sexual offenders’

characteristics based on over 25 years of education 

and experience: Sexual exploit is about control, and 

overwhelmingly statically [sic] the sexual exploiter is 

a biological male. Most sexual offenders have multiple 

victims, sometimes dozens, due to the secrecy of the 

crime and the reluctance for victims to come foreword 

[sic], hence encouraging the sexual predator to 

believe he has gotten away with the crime(s). Sexual 

predators will most likely tell their victims to remain 

secretive about the sexual abuse and/or threaten 

them with retaliation should they tell. The large 

majority of victims are not strangers; sexual 

predators get to know their victims (as quickly as 

possible) in order to assess vulnerability and establish 

trust. The sexual predator may use special favors like 

excessive attention, praise, favoritism, or gifts to 

establish trust. They use the trust that has been 

established as a control mechanism, exploiting the 

victims' feelings of guilt, loyalty, or dependency. 

Adolescents who have special needs, are having 

identity issues, feeling unloved, or having peer issues 

are vulnerable to the attention of a sexual predator. 

Many times, pedophiles in particular do not relate to 

peers their own age; they do not think or feel like a 

responsible adult, and they “fit in” with younger peers. 

Pedophiles tend to frequent locations where children 

and/or adolescents are found with minimal 

supervision, intent on preying upon naive, 

impressionable, and vulnerable victims. Sexual 

predators rationalize their crimes to themselves and 

minimize their crimes to other[s] when caught. Lastly, 

many sexual predators are narcissistic[.] Narcissism 

is clinically defined as a grandiose sense of selfimportance and preoccupation with fantasies of 

power, a belief that he is unique, has a need for 

excessive admiration, has a sense of entitlement, a 

lack of empathy, envious of others and an arrogant 

attitude.

On cross-examination, Dr. Shollenberger was acknowledged 

by [Kelley’s] counsel to be an expert in the field of sexual 

offense counseling.
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Trial Court Opinion, filed Apr. 16, 2022, at 14-15 (alterations in original)

(“1925(a) Op.”).

The trial court denied the motion to preclude the expert testimony and 

permitted the Commonwealth to present the expert opinion of Dr. Matthew 

Shollenberger. However, it put limits on his testimony and barred him from 

testifying “regarding specifics of this case.” Order, filed Oct. 15, 2020.

After a trial, the jury convicted Kelley of the above-referenced offenses.3

The trial court sentenced him to an aggregate sentence of 18 to 50 years’ 

incarceration.

4

It then held an SVP hearing and heard testimony from both an 

expert presented by the Commonwealth and an expert presented by Kelley. 

The Commonwealth’s expert, Corrine Scheuneman, M.A., L.P.C., a 

member of Pennsylvania’s Sexual Offenders Assessment Board (“SOAB”), 

opined that Kelley has hebephilia, which is a condition where “an individual 

[is] sexually attracted to adolescents whose pubescence or secondary sex 

characteristics are just emerging.” N.T., July 2, 2021, 17, 20. She stated this 

was considered a lifetime disorder. Id. at 21. Scheuneman testified that 

____________________________________________

3 Kelley had been charged with two counts of burglary. The jury found Kelley 

not guilty of one count of burglary.

4 The trial court originally sentenced Kelley to an aggregate of 28 to 56 years’ 

incarceration. Kelley filed a post-sentence motion challenging the grading of 

two of the unlawful contact with minor convictions and the mandatory 

minimum applied to the involuntary deviate sexual intercourse conviction. The 

trial court granted the motion, and re-sentenced Kelley to an aggregate 

sentence of 18 to 50 years’ incarceration.
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hebephilia is not listed as a disorder in the DSM-V.

5 She stated that although 

a lot of paraphilic disorders are not listed in the DSM-V, individuals “still may 

suffer from” the disorders and the disorders “might be addressed in the clinical 

setting.” Id. at 18. She stated that “there are so many that it would be 

exhaustive to print them all on the pages of the DSM.” Id. at 18. She further 

testified that she uses the DSM for diagnosing a person in a clinical setting, 

but at the hearing she “was charged with . . . mak[ing] a conclusion that’s 

consistent with the law and the way the law defines mental abnormality, 

personality disorder.” Id. at 34. She pointed out that “hebephilia has been 

accepted in courts of law as significant because [they are] not just talking 

about urges and arousal patterns that we might treat in a clinical setting, but 

rather [they] are talking about behavior that follows those urges and arousing 

patterns.” Id.

Scheuneman discussed the statutory factors for determining whether a 

person should be classified as an SVP. She noted, among other things, that: 

the offense included multiple victims with multiple sex acts; Kelley used 

coercion and manipulation and broke into homes to accomplish the offenses; 

the victims were between 13 and 15 years of age; and Kelley befriended the 

victims and engaged in conversation to identify emotional vulnerability. She 

acknowledged that Kelley did not have a prior history of sexual offenses, and 

____________________________________________

5 Diagnostic and Statistical Manual of Mental Disorders, Fifth Ed.
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that he was 19 years of age at the time of the offenses. See id. at 8-24; Trial 

Court Opinion, at 17-19.

Thomas F. Haworth, Ph.D., L.P., a former member of the Sexual 

Offenders Assessment Board, testified that hebephilia is not a disorder 

recognized in the DSM-V and “there is enormous controversy within the 

scientific field around the validity of hebephilia being a paraphilic disorder.” 

Id. at 52, 54. He testified that he believed Kelley’s conduct was attributable 

to a previously undiagnosed condition of bipolar disorder and “histrionic 

personality traits,” which both could be treated through pharmacotherapy and 

cognitive behavioral therapy. See id. at 48, 61; Trial Court Opinion, at 17-19. 

Dr. Haworth was able to interview Kelley and administer psychometric tests. 

The trial court found that the Commonwealth had proven, by clear and 

convincing evidence, that Kelley was an SVP. Kelley timely appealed.

Kelley raises the following issues:

I. Did the trial court err in denying [Kelley’s] motion to 

sever, when one course of conduct against a victim differed 

substantially from the common scheme alleged by the 

Commonwealth for the remaining two victims?

II. Did the trial court err in permitting the Commonwealth to 

present expert testimony when the testimony elicited was 

confusing to the finder of fact when applied to so many 

complainants with varying and unique allegations of 

misconduct by [Kelley]?

III. Did the trial court err in determining that [Kelley] is a 

sexually violent predator?

Kelley’s Br. at 7 (suggested answers and unnecessary capitalization omitted).
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In his first issue, Kelley argues the trial court erred in denying his motion 

to sever. He argues that “the trial court should have severed at the very least 

M.M’s charges from those of K.W. and S.B.” Id. at 23. He points out there was 

no evidence at the severance hearing that M.M. and Kelley engaged in sexual 

behavior and he alleges he did not “groom” her or swear her to secrecy. Kelley 

maintains that M.M. was not a friend of K.W. and S.B. and did not observe 

any interactions between S.B. or K.W. and Kelley. He claims the events with 

M.M. were totally separate, with no common plan or scheme. He argues the 

evidence regarding K.W. and S.B.’s allegations served “only to present 

propensity to commit crimes of sexual misconduct.” Id. at 24. He further 

argues the expert testimony would not have been permissible at M.M.’s trial 

because it would have been irrelevant. He maintains the evidence was most 

relevant to S.B.’s allegations. He maintains that by joining the trial of M.M.’s 

allegations with the trial for K.W. and S.B.’s allegations the trial court 

“muddied the waters of the facts and abused its discretion in the interest of 

judicial economy.” Id. at 25.

We review a trial court’s decision to deny a motion for severance for an 

abuse of discretion. Commonwealth v. Dozzo, 991 A.2d 898, 901

(Pa.Super. 2010) (quoting Commonwealth v. Melendez–Rodriguez, 856 

A.2d 1278, 1282 (Pa.Super. 2004) (en banc)).

Pennsylvania Rule of Criminal Procedure 582 governs the joinder of 

separate informations for trial and provides:
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(1) Offenses charged in separate indictments or 

informations may be tried together if:

(a) the evidence of each of the offenses would be 

admissible in a separate trial for the other and is 

capable of separation by the jury so that there is no 

danger of confusion; or

(b) the offenses charged are based on the same act 

or transaction.

Pa.R.Crim.P. 582(A)(1).

Rule 583 governs severance of offenses and provides:

The court may order separate trials of offenses or 

defendants, or provide other appropriate relief, if it appears 

that any party may be prejudiced by offenses or defendants 

being tried together.

Pa.R.Crim.P. 583. “Under Rule 583, the prejudice the defendant suffers due 

to the joinder must be greater than the general prejudice any defendant 

suffers when the Commonwealth’s evidence links him to a crime.” Dozzo, 991 

A.2d at 902 (quoting Commonwealth v. Lauro, 819 A.2d 100, 107 

(Pa.Super. 2003)). Rather, the prejudice required under Rule 583 is “that 

which would occur if the evidence tended to convict [the] appellant only by 

showing his propensity to commit crimes, or because the jury was incapable 

of separating the evidence or could not avoid cumulating the evidence.” Id.

(quoting Lauro, 819 A.2d at 107).

Reading Rules 582 and 583 together, the Pennsylvania Supreme Court 

determined that to decide whether to grant severance, courts must ask 

whether the evidence would be admissible in separate trials, the evidence is 

capable of separation by the jury, and the defendant will be unduly prejudiced
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if the offenses are tried together. Commonwealth v. Ferguson, 107 A.3d 

206, 210-11 (Pa.Super. 2015) (quoting Commonwealth v. Collins, 703 A.2d 

418, 422 (Pa. 1997)) (brackets in original).

Evidence of other crimes or bad acts is not admissible to prove that the 

defendant acted “in conformity with those acts or to demonstrate a criminal 

propensity.” Commonwealth v. Brown, 52 A.3d 320, 325 (Pa.Super. 2012); 

Pa.R.Evid. 404(b). The evidence, however, may be admissible for another,

proper purpose. Brown, 52 A.3d at 325. One such proper purpose is to 

demonstrate a common plan, motive, scheme, or intent. Dozzo, 991 A.2d at 

902 (quoting Collins, 703 A.2d at 422-23).

Here, the trial court analyzed the three factors and denied the motion 

to sever the charges:

In looking at the first prong of the . . . test, this court will 

examine whether [Kelley’s] conduct constituted a common 

scheme, plan or design, whether the evidence would 

support proving [Kelley’s] intent, and whether the evidence 

would be admissible in separate trials. This court concludes 

that the Commonwealth has demonstrated the existence of 

a common scheme, plan or design evidenced in [Kelley’s] 

conduct, and demonstrated that this evidence would 

support finding [Kelley’s] criminal intent. Specifically, 

[Kelley’s] conduct with regard to meeting his alleged minor 

victims at a local skating rink, adopting a “superhero”

persona with his victims via referring to himself as 

“Superman” and claiming a desire to “help” them, sneaking 

into the alleged victims’ residences by way of bedroom

windows, acting without any knowledge or consent from the 

alleged victims’ parents, and communicating with his 

victims while attempting to isolate them from family and 

support structures through both social media and written 

mail represent a common scheme, plan or design. 
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Therefore, the Commonwealth has met the first prong of the 

. . . test.

Regarding the second prong . . ., it is clear that the jury 

would be capable of avoiding confusion, and be able to 

separate the different allegations. “Where a trial concerns

distinct criminal offenses that are distinguishable in time, 

space and the characters involved, a jury is capable of 

separating the evidence.” Com. v. Collins, supra, 550 Pa. 

at 56. There are three separate alleged victims, and 

separate crimes connected with each alleged victim over a

span of roughly nine months. The jury will, presumably, 

hear from each alleged victim, and will be able to evaluate 

their credibility regarding the individual offenses related to 

each of them. Therefore, the Commonwealth has met the 

second prong of the . . . test.

Finally, under the third prong of the . . . test, while [Kelley]

may suffer some prejudice as a result of the jury hearing 

allegations involving three alleged victims, regarding

incidents spread over a nine month period, he will not be 

unduly prejudiced by consolidation. . . . 

Here, as discussed previously, the jury would not be 

confused by the evidence submitted during a consolidated 

trial, and the Commonwealth is not seeking to convict

[Kelley] on the basis of any purported propensity to commit 

crimes. Therefore, the Commonwealth has passed the . . . 

test, and [Kelley’s] motion to sever should properly be

denied.

Trial Court Opinion, filed Oct. 7, 2020, at 4-5.

The trial court did not abuse its discretion. The evidence would have 

been admissible in separate trials, as it was admissible to establish a common 

plan, motive, scheme, or intent. Further, the jury could separate the evidence, 

avoiding the danger of confusion. In addition, Kelley would not be unduly 

prejudiced by the consolidation of offenses, as any prejudice would not be 

greater than other evidence linking him to the crime and the Commonwealth 
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was not seeking to convict Kelley based on a purported propensity to commit 

crimes.

Kelley next claims the court erred in allowing the Commonwealth to 

present expert testimony on grooming behavior. He argues the expert 

testimony “was dumped on defense counsel on the eve of trial,” which limited 

Kelley’s ability to contest it and hire an expert. Kelley’s Br. at 25. He further 

claims the expert testimony focused on Kelley’s “savior complex” and 

“‘Superman’ persona that was alleged to be predatory,” which he alleges had 

nothing to do with M.M. Id. at 26. He argues “[t]he wide range of allegations 

made by each complainant rendered the expert testimony wholly confusing as 

to how it was relatable to any single victim.” Id.

“[T]he admission of expert testimony is a matter left largely to the 

discretion of the trial court, and its rulings thereon will not be reversed absent 

an abuse of discretion.” Commonwealth v. Watson, 945 A.2d 174, 176 

(Pa.Super. 2008) (quoting Commonwealth v. Brown, 596 A.2d 840, 842 

(Pa.Super. 1991)).

Section 5920 of the Judicial Code governs expert testimony in criminal 

proceedings. Where a defendant is charged with certain offenses, including

sexual offenses, solicitation, corruption of minors, and unlawful contact with 

minors, Section 5920 permits a witness to be qualified as an expert if the 

witness has “specialized knowledge beyond that possessed by the average 

layperson” based on the witness’s experience, specialized training, or 

education in “criminal justice, behavioral sciences or victim services issues, 
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related to sexual violence or domestic violence.” 42 Pa.C.S.A. § 5920(b)(1). 

The witness may be so qualified if the proffered testimony will assist the trier 

of fact “in understanding the dynamics of sexual violence or domestic violence, 

victim responses to sexual violence or domestic violence and the impact of 

sexual violence or domestic violence on victims during and after being 

assaulted.” Id.

The trial court cited Section 5920 and concluded that the General 

Assembly expressly authorized “the presentation of expert testimony in a case 

of the present type,” and the court permitted “Dr. Shollenberger’s testimony 

as proffered by the Commonwealth, subject to the restriction imposed in the 

order,” that is, he was not permitted to testify regarding specifics of the instant 

case. 1925(a) Op. at 25. It further concluded that any prejudice to Kelley due 

to the timing of the notice, would have been “obviated by the passage of more 

than a year from the date of the notice until trial.” Id.

Kelley’s challenges to the admission of the testimony are meritless. 

Section 5920 permits the use of expert testimony about the dynamics of 

sexual violence in cases, such as the current case, where sex crimes are 

charged. Here, the expert provided testimony of the sort contemplated by the 

statute. Further, although the Commonwealth did not provide notice of its 

intent to use an expert until shortly before the initial date for trial, the trial 

was continued for more than a year following the retention of the expert, 

giving Kelley time to respond to the testimony.
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In his final claim, Kelley contends that the evidence that he was an SVP

did not rise to the level of clear and convincing evidence. He argues that his 

expert, Dr. Haworth, “presented compelling testimony that due to the age of 

Mr. Kelley and his specific mental health conditions needing valid and 

accessible treatment regimens, that it is hard to say the Commonwealth met 

its burden of proof by a clear and convincing standard.” Kelley’s Br. at 26-27. 

Kelley argues that Dr. Haworth had more experience as an evaluator and more 

education than Ms. Scheuneman and had conducted an in-person examination

of Kelley. He argues that Dr. Haworth “did not try to categorize [] Kelley with 

a label that does not have general acceptance in the greater scientific 

community.” Id. at 27. Kelley further claims that he “is an immature manchild who has delusion of grandeur amplified by bipolar disorder, not that he 

is an incurable sociopath who will always be a sexually violent predator.” Id.

He points out he was 19 at the time of the crimes and claims that when K.W. 

asked him to stop, he did.

We review an SVP designation to determine whether the Commonwealth 

presented clear and convincing evidence that the defendant meets the 

statutory definition of an SVP. Commonwealth v. Hollingshead, 111 A.3d 

186, 189 (Pa.Super. 2015). “As with any sufficiency of the evidence claim, we 

view all evidence and reasonable inferences therefrom in the light most 

favorable to the Commonwealth.” Id. (quoting Commonwealth v. Baker, 24 

A.3d 1006, 1033 (Pa.Super. 2011)).
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To be classified as an SVP, the Commonwealth must prove by clear and 

convincing evidence that the defendant has “a mental abnormality or 

personality disorder that makes [him] likely to engage in predatory sexually 

violent offenses.” 42 Pa.C.S.A. § 9799.12 (“Sexually violent predator”). 

The statute defines “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.” Id. (“Mental abnormality”) The defendant’s 

conduct must also have been “predatory,” which the statute defines as “[a]n 

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

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

to facilitate or support victimization.” Id. (“Predatory”); Commonwealth 

v. Stephens, 74 A.3d 1034, 1038 (Pa.Super. 2013).

To determine whether the defendant meets the above definition, the 

SOAB evaluates the following factors, “which are mandatory and are designed 

as criteria by which the likelihood of reoffense may be gauged”:

(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.
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(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:

(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.A. § 9799.24(b); Commonwealth v. Morgan, 16 A.3d 1165, 

1168-69 (Pa.Super. 2011). We have found that “a trial court may conclude, 

based upon the expert testimony and facts in a given case, that a hebephilia 

diagnosis is sufficient to find a defendant has a mental abnormality.” 

Hollingshead, 111 A.3d at 193. We concluded that “the debate about 

surrounding hebephilia diagnoses, and their use in SVP proceedings, goes to

the weight of the expert witness’ testimony.” Id.
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The trial court found the Commonwealth proved by clear and convincing 

evidence that Kelley was an SVP:

In the present case, an independent review of the factors to 

be considered in a sexually violent predator determination, 

the opinions of the experts, and the caselaw concerning 

hebephilia led th[e trial] court to concur with the factororiented analysis of the Commonwealth’s expert, including 

her diagnosis, and to find that the Commonwealth had met 

its burden of proving that [Kelley] met the criteria for a 

sexually violent predator by clear and convincing evidence.

1925(a) Op. at 27-28.

We conclude the Commonwealth presented sufficient evidence to 

support the court’s conclusion Kelley was an SVP. Scheuneman testified to her 

analysis of the factors and concluded he suffered from a mental disorder and 

his actions were predatory. This testimony, which the court credited, supports 

its conclusion that Kelley was an SVP. Any controversy regarding hebephilia 

diagnoses in SVP proceedings goes to the weight, not the sufficiency, of the 

testimony. Hollingshead, 111 A.3d at 193.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 01/24/2023