J-S05017-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

MARK ANTHONY NIGRO

Appellant No. 954 MDA 2021

Appeal from the Judgment of Sentence Entered June 28, 2021

In the Court of Common Pleas of Dauphin County

Criminal Division at No.: CP-22-CR-0001503-2019

BEFORE: PANELLA, P.J., STABILE, J., and DUBOW, J.

MEMORANDUM BY STABILE, J.: FILED APRIL 14, 2022

Appellant Mark Anthony Nigro appeals from the June 28, 2021 judgment 

of sentence entered in the Court of Common Pleas of Dauphin County (“trial 

court”). On appeal, Appellant challenges only his designation as a sexually 

violent predator (“SVP”). Upon review, we affirm. 

The facts and procedural history of this case are undisputed. Briefly, 

following accusations that he sexually assaulted a four-year-old girl, 

Appellant, in February 2021, was charged with aggravated indecent assault of 

child, unlawful contact with minor – sexual offenses, indecent assault on 

person less than 13 years of age, and corruption of minors.1 On December 

21, 2020, Appellant entered a negotiated guilty plea. Under the terms of the 

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1 18 Pa.C.S.A. §§ 3125(b), 6318(a)(1), 3126(a)(7), and 6301(a)(1)(ii), 

respectively. 
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plea agreement, the Commonwealth agreed to amend the charge of 

aggravated indecent assault of child to unlawful contact with minor – open 

lewdness.2 N.T., Guilty Plea, 12/21/20, at 2. Appellant pleaded guilty to all 

charges and agreed to, inter alia, an aggregate sentence of 14 to 28 years’ 

imprisonment. Id. The trial court deferred sentencing to March 15, 2021 and 

directed that an assessment be completed by the Pennsylvania Sexual 

Offenders Assessment Board (“SOAB”) to determine whether Appellant be 

classified as an SVP. Sentencing, subsequently, was continued twice and 

rescheduled for June 28, 2021. 

On April 30, 2021, the Commonwealth filed a praecipe, noticing its intent 

under 42 Pa.C.S.A. § 9795.4 to classify Appellant as an SVP. The trial court 

scheduled an SVP hearing for June 28, 2021, the date of sentencing. At the 

hearing, only the Commonwealth presented testimony when it called to the 

stand Dr. Robert Stein, a member of the SOAB. The trial court summarized 

the testimony as follows:

First, Dr. Stein analyzed the facts of the current offense. He 

testified that the offense involved a single victim, and the 

Appellant did not exceed the means necessary to achieve the 

offense. He further testified that Appellant’s contact included

penetrative sexual touching of an unrelated four (4) year old 

female child, which is consistent with pedophilic interest. Dr. Stein 

noted that there was no unusual cruelty. 

Next, Dr. Stein analyzed any prior offenses of the Appellant. 

He testified that Appellant’s prior offenses included sexual contact 

with a thirteen (13) year old female in 2011. Appellant was 

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2 18 Pa.C.S.A. § 6318(a)(2). 
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convicted and sentenced to two and a half (2 1⁄2) to five (5) years 

at a state correctional institution. While incarcerated, Appellant

attended and completed sex offender treatment. Dr. Stein opined 

that since completing treatment, Appellant would be expected to 

understand the risk factors associated with future offending. In 

2013, Appellant was evaluated by the Pennsylvania Board of 

Probation and Parole which included a relapse prevention

interview. Appellant identified a high-risk situation in that 

interview as any place where teenagers would congregate or 

websites that included young women. Appellant gave himself a 5 

or 6 out of 10, 10 being the highest on risk to re-offend. The 2013 

report further noted that Appellant should not be permitted to

develop relationships with females that have children. 

Dr. Stein also considered the characteristics of the 

Appellant. He noted Appellant was substantially older than his 

victim, which is also consistent with pedophilic interest. 

Additionally, Appellant has a history of using illegal substances, 

such as marijuana, ecstasy, cocaine, and hallucinogens. 

However, Dr. Stein noted that substance abuse was not associated 

with his current offense. Appellant also has a history of bipolar 

disorder, but there no information that his bipolar diagnosis was

associated with his current offense. 

Finally, Dr. Stein testified that having a prior sexual offense 

and having an unrelated victim are both statistically associated 

with risk of re-offense. He further opined that Appellant suffers 

from a mental abnormality, specifically pedophilia. In 2011, 

Appellant plead guilty to indecent assault, which required him to 

be assessed by SOAB. At that time, Appellant was not found to

have a mental abnormality; therefore, he was not designated an

SVP. However, due to the current molestation of a four (4) year 

old female, Dr. Stein opined that Appellant now suffers from a 

mental abnormality. 

Pedophilia is a recognized mental disorder in the Diagnostic 

and Statistical Manual of Mental Disorders (“DSM”) and is defined 

as a period of six (6) months or more of which an individual has a 

sexual interest in a young child. Dr. Stein conceded that he does 

not know exactly how long the current offense went on. However, 

taking into consideration his prior offense involving a thirteen (13) 

year old female in the earliest stages of puberty, Dr. Stein 

concluded that the statutory time period of six (6) months was

satisfied. Dr. Stein further testified that pedophilia is not curable, 
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but is potentially manageable with treatment. He further opined 

that the pedophilia overrode Appellant’s emotional or volitional 

control because even though Appellant already received 

significant consequences for his previous actions, he is still unable 

to control his urges. 

Trial Court Opinion, 9/20/21, at 6-8 (record citations, quotation marks and 

brackets omitted). At the conclusion of the hearing, and based on Dr. Stein’s 

testimony and report, the trial court determined Appellant to be an SVP and 

sentenced him to 14 to 28 years’ imprisonment in accordance with the 

negotiated guilty plea.3 The court additionally determined that Appellant was 

entitled to a credit of 28 months for time served. Appellant did not file any 

post-sentence motions, but filed this timely appeal. The trial court directed 

Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on 

appeal. Appellant complied, claiming, among other things, that Dr. Stein 

failed to assess the risk Appellant posed to engage in future sexual offenses. 

In response, the trial court issued a Pa.R.A.P. 1925(a) opinion. 

On appeal, Appellant presents a single issue for our review. 

[I.] Did not the Commonwealth failed to prove [Appellant’s] status 

as a “sexually violent predator” when the Commonwealth’s expert 

did not undergo an independent risk assessment as to the 

likelihood of reoffense and, instead, concluded in effect that all 

persons who have committed hands-on sexual offenses and who 

are diagnosed with pedophilic disorder, ipso facto, are “likely” to 

reoffend?

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3 Appellant also was ordered to pay the cost of prosecution and a $1,000 fine. 
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Appellant’s Brief at 6 (unnecessary capitalizations omitted) (emphasis in 

original).4 

When considering the sufficiency of evidence supporting a trial court’s 

SVP designation, our standard of review is as follows:

In order to affirm an SVP designation, we, as a reviewing court, 

must be able to conclude that the fact-finder found clear and 

convincing evidence that the individual is a[n SVP]. As with any 

sufficiency of the evidence claim, we view all evidence and 

reasonable inferences therefrom in the light most favorable to the 

Commonwealth. We will reverse a trial court’s determination of 

SVP status only if the Commonwealth has not presented clear and 

convincing evidence that each element of the statute has been 

satisfied.

Commonwealth v. Hollingshead, 111 A.3d 186, 189 (Pa. Super. 2015) 

(citation omitted), appeal denied, 125 A.3d 1199 (Pa. 2015). On appeal 

from a trial court’s classification of an offender as an SVP, this Court is to 

review, not reweigh and reassess, the evidence. Commonwealth v. Meals, 

912 A.2d 213, 223 (Pa. 2006). As stated, a challenge to a determination of 

SVP status requires us to view the evidence in the light most favorable to the 

Commonwealth. Commonwealth v. Prendes, 97 A.3d 337, 355-56 (Pa. 

Super. 2014) (citation omitted)5, appeal denied, 105 A.3d 736 (Pa. 2014). 

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4 A panel of this Court previously rejected this identical issue when Appellant’s 

counsel raised it in an unrelated appeal. See Commonwealth v. 

Carruthers, No. 1957 MDA 2015, unpublished memorandum, *2 (Pa. Super. 

Filed July 8, 2016). 

5 Prendes was tacitly overruled on other grounds by Commonwealth v. 

Hvizda, 116 A.3d 1103, 1106 (Pa. 2015). 
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We may not weigh the evidence or substitute our judgment for that of the trial 

court, and our scope of review is plenary. Id. Further, an expert’s opinion, 

“rendered to a reasonable degree of professional certainty, is itself evidence.” 

Id. (emphasis in original). 

We have outlined the process for determining an SVP status under the 

Sex Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S.A. §§ 

9799.10-9799.42, and explained it 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.[6] An SVP is defined as a person who has 

been convicted of a sexually violent offense . . . and who has a 

mental abnormality or personality disorder that makes the person 

likely to engage in predatory sexually violent offenses. In order 

to show that the offender suffers from a mental abnormality or 

personality disorder, the evidence must show that the defendant

suffers from a congenital or acquired condition that affects the 

emotional or volitional capacity of the person in a manner that 

predisposes that person to the commission of criminal sexual acts 

to a degree that makes the person a menace to the health and 

safety of other persons. Moreover, there must be a showing that 

the defendant’s conduct was predatory. . . . Furthermore, in 

reaching a determination, we must examine the driving force 

behind the commission of these acts, as well as looking at the 

offender’s propensity to reoffend, an opinion about which the 

Commonwealth’s expert is required to opine. However, the risk 

of re-offending is but one factor to be considered when 

making an assessment; it is not an independent element.

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6 After conviction for a sexually violent offense, but before sentencing, the 

trial court must order the SOAB to perform an assessment to help determine 

whether a defendant should be classified as an SVP. 42 Pa.C.S.A. § 

9799.24(a). 
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Hollingshead, 111 A.3d at 189–90 (internal brackets omitted) (emphasis 

added) (citing Commonwealth v. Stephens, 74 A.3d 1034, 1038–1039 (Pa.

Super. 2013)). 

Furthermore, 

When performing an SVP assessment, a mental health 

professional must consider the following 15 factors: whether the 

instant offense involved multiple victims; whether the defendant 

exceeded the means necessary to achieve the offense; the nature 

of the sexual contact with the victim(s); the defendant’s 

relationship with the victim(s); the victim(s)’ age(s); whether the 

instant offense included a display of unusual cruelty by the 

defendant during the commission of the offense; the victim(s)’

mental capacity(ies); the defendant’s prior criminal record; 

whether the defendant completed any prior sentence(s); 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. See 42 Pa.C.S.A. § 9799.24(b).

Hollingshead, 111 A.3d at 189-90. There is no statutory requirement that 

all statutory factors or any particular number of them be present or absent in 

order to support an SVP designation. Meals, 912 A.2d at 220-23. The factors 

are not a checklist with each one weighing in some necessary fashion for or 

against SVP designation. Id. at 222. Rather, the presence or absence of one 

or more factors might simply suggest the presence or absence of one or more 

particular types of mental abnormalities. Id. at 221. Thus, while the SOAB 

is to examine all of the statutory factors, the Commonwealth does not have 

to show that any certain factor is present or absent in a particular case. Id. 
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Rather, the question for the trial court is whether the Commonwealth’s 

evidence, including the SOAB’s assessment, demonstrates that the person 

convicted of a sexually violent offense has a mental abnormality or disorder 

rendering that person likely to engage in predatory sexually violent offenses. 

Commonwealth v. Feucht, 955 A.2d 377, 381 (Pa. Super. 2008). 

Instantly, the crux of Appellant’s argument is that the evidence 

presented by the Commonwealth was insufficient to sustain an SVP 

designation. Specifically, Appellant argues that the definition of SVP contains 

three (3) separate and distinct elements—(1) mental abnormality; (2) 

predatory act; and (3) an independent assessment, using the factors set forth 

above in Section 9799.24(b), that there is a likelihood of re-offense—and that 

Dr. Stein did not undergo an assessment of the risk of re-offense as an 

independent element of the definition. This argument lacks merit, as it is not 

supported by law. As we repeatedly have made clear, “the risk of re-offending 

is merely a factor to be considered in making an SVP determination, and not 

an independent element.” Stephens, supra at 1039; see Commonwealth 

v. Dixon, 907 A.2d 533, 537, 539 (Pa. Super. 2006) (explaining that “every 

Commonwealth expert who testifies that an individual is an SVP must 

examine, and render an opinion on, whether the individual is likely to reoffend. [However], the precise manner of meeting this burden is not analyzed 

in terms of a strict, three-prong test” because neither this Court nor our 

Supreme Court “has set out the SVP standard in terms of three distinct 

elements”), appeal denied, 920 A.2d 830 (Pa. 2007); accord 
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Commonwealth v. Geiter, 929 A.2d 648, 651 (Pa. Super. 2007), appeal 

denied, 940 A.2d 362 (Pa. 2007). 

Instantly, Dr. Stein thoroughly considered and assessed Appellant’s risk 

of re-offending. In reviewing Dr. Stein’s report and testimony, the trial court 

concluded:

What is most significant to this court is the fact that Appellant 

“successfully” completed sex offender treatment after being 

convicted of a prior sexual offense. In 2013, Appellant selfidentified that a high-risk situation for him involved congregation 

of young adolescent females and was warned not to develop 

relationships with females who have children. Despite his 

completion of sex offender treatment and knowing that he should 

not develop relationships with females who have children, 

Appellant did exactly that. He befriended a woman who had a 

four (4) year old female child. Appellant periodically stayed 

overnight at their house where he abused their child.

Trial Court Opinion, 9/20/21, at 8. As the foregoing demonstrates, Appellant 

not only is likely to re-offend, he in fact re-offended, despite undergoing 

treatment and serving time in prison. Accordingly, viewing the evidence in 

the light most favorable to the Commonwealth as the verdict winner, we agree 

with the trial court’s determination that the Commonwealth presented 

sufficient evidence to establish that Appellant be classified as an SVP.

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/14/2022