J. A21016/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

:

v. :

:

MAURICE HICKADAY, :

:

Appellant : No. 1726 EDA 2015

Appeal from the Judgment of Sentence January 28, 2015

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0002566-2014

BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 18, 2016

Appellant, Maurice Hickaday, appeals from the Judgment of Sentence 

entered on January 28, 2015, in the Court of Common Pleas of Philadelphia 

County following his no contest plea to Rape by Forcible Compulsion, 

Indecent Assault by Forcible Compulsion, Carrying a Firearm without a 

License, Possessing an Instrument of a Crime1and his designation as a 

Sexually Violent Predator (“SVP”) pursuant to 42 Pa.C.S. §§ 9799.10-

9799.41. After careful review, we affirm. 

The factual history is not in dispute. On May 8, 2011, in the early 

morning hours, Marian Shelton (“Victim”) was leaving the area near the 

Sugarhouse Casino on Delaware Avenue in Philadelphia, Pennsylvania, when 

 

1 18 Pa.C.S. § 3121(a)(1); 18 Pa.C.S. § 3126(a)(2); 18 Pa.C.S. § 

6106(a)(1); and 18 Pa.C.S. § 907(a), respectively.
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Appellant, along with two other males, offered Victim and Victim’s friend a 

ride. After Victim’s friend got out of the car, Appellant pointed a firearm at 

Victim, took her to a nearby location, brought her inside a structure, and 

engaged in non-consensual sexual intercourse with Victim. Victim sought 

medical treatment, including a rape kit examination. The sperm that was 

recovered from the rape kit was placed in the DNA database, and in 2013 

there was a “CODIS result which led to the [Appellant’s] arrest.” Trial Court 

Opinion, dated 11/3/15, at 3.

On July 22, 2014, Appellant appeared before the Honorable Timika 

Lane and pled no contest to Rape by Forcible Compulsion and related 

charges. Judge Lane sentenced Appellant to a term of 7 1⁄2 to 15 years’ 

incarceration followed by 5 years of probation for the Rape charge, 7 years 

of probation for Carrying a Firearm without a License, and 3 years of 

probation for Possessing an Instrument of Crime. Judge Lane deferred 

sentencing on the Indecent Assault charge.

On January 23, 2015, Judge Lane held a SVP hearing. The 

Commonwealth entered into evidence the Sexual Offender Assessment 

Board Report by Dr. Barbara Ziv (“Report”) and Dr. Ziv’s curriculum vitae

without objection from Appellant. The parties stipulated that Dr. Ziv was an 

expert in her field and if called to testify, she would testify to the contents of 

the Report, which concluded that Appellant met the criteria set forth in the 

law for classification as a SVP. The parties further stipulated that there were 
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some errors in Dr. Ziv’s Report regarding Appellant’s criminal history, but 

also stipulated that Dr. Ziv communicated to the Commonwealth that the 

corrections “would not alter her analysis and determination” that Appellant 

meets the criteria to be a SVP. N.T. SVP Hearing, 1/23/15, at 5. Without 

objection from the Commonwealth, Appellant entered into evidence a copy 

of the personality disorder chapter from the Diagnostic and Statistical 

Manual 5th Edition (“DSM-V”) and an Inmate Cummulative Adjustment 

Record document from the Pennsylvania Department of Corrections. 

Appellant did not present any witnesses. After holding her decision under 

advisement, on January 28, 2015, Judge Lane found by clear and convincing 

evidence that Appellant met the criteria for a SVP. Judge Lane sentenced 

Appellant to “no further penalty” for the Indecent Assault charge and 

ordered that Appellant was “subject to a lifetime registration with the 

Pennsylvania State Police.” N.T. Sentencing, 1/28/15, at 3-4.

On February 6, 2015, Appellant filed a timely Post-Sentence Motion, 

which was denied on June 2, 2015. Appellant timely appealed and both 

parties complied with Pa.R.A.P. 1925.

Appellant raises the following issues on appeal: 

1. Did not the Commonwealth fail to prove by clear and convincing 

evidence that [A]ppellant met the statutory definition of a 

“sexually violent predator” (SVP) where: a) the Commonwealth 

failed to prove by clear and convincing evidence that [A]ppellant 

suffered from Personality Disorder, NOS (not otherwise 

specified); b) the Commonwealth failed to prove by clear and 

convincing evidence that [A]ppellant was “likely” to engage in 

future predatory sexual violence; and c) the Commonwealth 
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failed to prove by clear and convincing evidence that [A]ppellant 

suffers from a lifelong condition?

2. Did not the trial court abuse her discretion by giving too much 

weight to the Commonwealth expert’s report in finding that 

[A]ppellant met the statutory definition of SVP, and should not 

the Commonwealth expert’s opinion be given little weight due to 

the substantive inaccuracies and misrepresentations?

 

Appellant’s Brief at 4 (reordered for ease of disposition).

Appellant first avers that there was not sufficient evidence to 

determine that Appellant met the criteria to be classified as a SVP, 

specifically that the Commonwealth failed to prove by clear and convincing 

evidence that Appellant suffers from a lifelong personality disorder that 

makes it likely that Appellant will engage in future predatory sexual violence. 

Appellant’s Brief at 4.

Appellant’s challenge to the sufficiency of the evidence to support the 

trial court’s classification of Appellant as a SVP presents a question of law, 

therefore our standard of review is de novo and our scope of review is 

plenary. Commonwealth v. Meals, 912 A.2d 213, 218 (Pa. 2006). The 

standard of proof governing the determination of SVP status is clear and

convincing evidence, which “requires evidence that is so clear, direct, 

weighty, and convincing as to enable the trier of fact to come to a clear 

conviction, without hestitency, of the truth of the precise facts in issue.” Id. 

at 219 (quotation and citation omitted). When reviewing the sufficiency of 
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evidence, we must consider the evidence in the light most favorable to the 

Commonwealth, the prevailing party in the instant case. Id. at 218.

The procedure for “determining SVP status is statutorily-mandated and 

well-defined.” Commonwealth v. Dixon, 907 A.2d 533, 535 (Pa. Super. 

2006). Section 9799.24 mandates that a trial court order every individual 

convicted of a sexually violent offense to be assessed by the Sexual Offender 

Assessment Board (“SOAB”) prior to sentencing to determine whether that 

individual qualifies as a SVP. 42 Pa.C.S. § 9799.24(a). A SVP is someone 

who has been convicted of one of the statute’s enumerated offenses and 

suffers from “a mental abnormality or personality disorder that makes the 

individual likely to engage in predatory sexually violent offenses.” 42 

Pa.C.S. § 9799.12; Dixon, supra at 537. The term “predatory” is further 

defined as “[a]n act directed at a stranger or at a person with whom a 

relationship has been initiated, established, maintained or promoted, in 

whole or in part, in order to facilitate or support victimization.” 42 

Pa.C.S. § 9799.12.

The statutorily-mandated assessment must include, but is not limited 

to, an examination of the following to determine whether the individual 

qualifies as a SVP:

(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.
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(ii) The nature of the sexual contact with the victim.

(iii) Relationship of the individual to the victim.

(iv) Age of the victim.

(v) 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. § 9799.24.
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After a careful review, and viewing the evidence in the light most 

favorable to the Commonwealth, we conclude the evidence was sufficient 

to support the trial court’s classification of Appellant as a SVP.

In the instant case, both parties stipulated to Dr. Ziv’s Report that 

thoroughly addressed all of the statutorily mandated factors. In the Report, 

Dr. Ziv concluded to a reasonable degree of professional certainty that 

Appellant suffers from a lifelong mental abnormality or personality disorder 

as defined in the statute, namely Unspecified Personality Disorder with 

Antisocial Traits, that Appellant’s “behavior during the [i]nstant [o]ffense 

does represent or correspond to the legal conception of ‘predatory,”’ and 

that Appellant met the criteria set forth in the law for classification as a SVP. 

SOAB Report, 9/17/14, at 9-10.

Appellant argues that Dr. Ziv did not make a “competent diagnosis” 

because she determined that Appellant was suffering from an Unspecified 

Personality Disorder with Antisocial Features but used the DSM-V criteria for 

Antisocial Personality Disorder to justify this diagnosis. Appellant’s Brief at 

10, 20. Appellant specifically argues that Dr. Ziv made a diagnosis “without 

evidence of a conduct disorder prior to age fifteen as required by the DSMV.” Appellant’s Brief at 20. This argument fails for several reasons.

First, the SVP statute “does not require proof of a standard of 

diagnosis that is commonly found and/or accepted in a mental health 

diagnostic paradigm.” Commonwealth v. Dengler, 890 A.2d 372, 383 
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(Pa. 2005). Rather, what is required is an analysis of the statutory factors. 

Id. Here, as required, Dr. Ziv analyzed all of the statutorily-mandated 

factors to determine that Appellant “suffers from a Mental 

Abnormality/Personality Disorder as defined in the Act.” SOAB Report, 

9/17/14, at 10. Appellant’s argument that Dr. Ziv did not use a specific 

criteria “required by the DSM-V” is without merit. 

Second, Dr. Ziv’s expert opinion is itself evidence. Meals, supra at 

223–24. And, “[t]o the extent [Appellant] felt that the expert’s ‘diagnosis’ 

was not fully explained, did not square with accepted analyses of the 

disorder, or was simply erroneous, he certainly was free to introduce 

evidence to that effect and/or to argue to the factfinder that the 

Commonwealth’s expert’s conclusions should be discounted or ignored. But 

that argument would affect the weight, and not the sufficiency, of the 

expert's evidence.” Id.

In this case, Appellant failed to cross-examine Dr. Ziv or introduce any 

contradictory evidence. The uncontroverted evidence presented to the trial 

court was an expert opinion that Appellant met the criteria for SVP. As such, 

the trial court had sufficient evidence to designate Appellant a SVP. See 

Meals, supra at 223-24 (citations and footnote omitted).

Appellant next avers that the trial court abused its discretion by giving 

too much weight to Dr. Ziv’s Report and that the Report should have been 
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given little weight due to substantive inaccuracies and misrepresentations. 

Appellant’s Brief at 4. We disagree. 

This Court’s standard of review of a weight of the evidence claim is for 

an abuse of discretion. Commonwealth v. Ratushny, 17 A.3d 1269, 1272 

(Pa. Super. 2011). Further, “it is not the function of the appellate court to 

substitute its judgment based on a cold record for that of the trial court. 

The weight to be accorded conflicting evidence is exclusively for the fact 

finder, whose findings will not be disturbed on appeal if they are supported 

by the record.” Id. (citation and quotation omitted). 

Here, the trial court opined:

Defense counsel argues that Dr. Ziv’s report contained 

inaccuracies. These errors were corrected during the SVP 

hearing and brought to the trial court's attention. Both counsels 

stipulated to the use of Dr. Ziv’s report. In addition, Dr. Ziv also 

indicated that the errors would not alter her analysis and 

determination that [Appellant] meets the criteria to be a SVP. 

Further, defense counsel argued that Dr. Ziv erred when she 

diagnosed [Appellant] with an Unspecified Personality Disorder, 

but used the criteria of Antisocial Personality Disorder from the 

DSM[-]V. The trial court finds Dr. Ziv’s professional analysis to 

be accurate and credible. Further, her report concludes that 

[Appellant] met the criteria for Unspecified Personality Disorder 

with antisocial traits, negating defense counsel's argument that 

Dr. Ziv erred when she used the Antisocial Personality Disorder 

criteria. [Appellant]’s deviant sexual interest and personality 

disorder places him with an increased recidivism risk. In 

addition, a thorough review of the statutory factors supports the 

classification of [Appellant] as a SVP. Therefore, the trial court’s 

designation of [Appellant] as a SVP was not against the weight 

of evidence.
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Trial Court Opinion, filed 11/3/15, at 10-11 (footnote and internal citations 

omitted). As the record supports the trial court’s conclusions, we find no 

abuse of discretion. 

Judgment of Sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/18/2016