J-S76040-14 2015 PA Super 38

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. KYLA A. HOLLINGSHEAD, Appellant No. 1294 WDA 2014

Appeal from the Judgment of Sentence of December 9, 2013 In the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07-CR-0001252-2013 BEFORE: FORD ELLIOTT, P.J.E., PANELLA and OLSON, JJ

. OPINION BY OLSON, J.: FILED FEBRUARY 19, 2015 Appellant, Kyla A. Hollingshead, appeals from the judgment of sentenced entered on December 9, 2013, as made fina l by the order entered on July 30, 2014 which designated her a sexually vi olent predator (“SVP”).

We affirm. The factual background of this case is as follows. In August 2010, Appellant was hired by Altoona Area High School to serve as an assistant coach of the girls’ soccer team. In October 2010, Appellant began a romantic relationship with a 15-year-old player on the team. In October 2012, Appellant began a romantic relationship with a 16-year-old player on the team. Eventually, both relationships led to se xual contact between Appellant and the players.J-S76040-14

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The procedural history of this case is as follows. On June 21, 2013, Appellant was charged via criminal information with two counts of corruption

of minors 1 and one count of institutional sexual assault. 2 On December 9, 2013, Appellant pled guilty to one count of corrupt ion of minors and institutional sexual assault. She was immediately sentenced to 60 days to 231⁄2 months’ imprisonment followed by 30 months’ prob ation. The trial

court also ordered that the Sexual Offender Assessm ent Board (“SOAB”) evaluate Appellant to determine if she met the crit eria to be classified as an

SVP. On March 17, 2014, the Commonwealth filed a praeci pe for an SVP hearing, which occurred on June 3, 2014. Corrine S cheuneman, MA, LPC, a member of the SOAB, testified on behalf of the Comm onwealth and Dr. Timothy Foley testified on behalf of Appellant. After considering posthearing briefs, the trial court designated Appellan t an SVP, and issued an opinion explaining its rationale. This timely appe al followed. 3 Appellant presents one issue for our review:

1 18 Pa.C.S.A. § 6301(a)(1).

2 18 Pa.C.S.A. § 3124.2(a)(2.1).

3 On August 18, 2014, the trial court ordered Appell ant to file a concise statement of errors complained of on appeal (“conci se statement”). See Pa.R.A.P. 1925(b). On August 19, 2014, Appellant f iled her concise statement. On August 21, 2014, the trial court iss ued a statement adopting its opinion of July 30, 2014. Appellant’s lone iss ue on appeal was included in her concise statement.J-S76040-14

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[Did] the trial court err[] and/or abuse[] its disc retion by classifying Appellant as a[n SVP?] Appellant’s Brief at 17 (complete capitalization re moved). Appellant challenges the sufficiency of the eviden ce relating to the trial court’s SVP designation. Our standard and scope of review is well-settled: In order to affirm an SVP designation, we, as a rev iewing 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 evid ence and reasonable inferences therefrom in the light most f avorable to the Commonwealth. We will reverse a trial court’s determination of SVP status only if the Commonwealth has not pres ented clear and convincing evidence that each element of the st atute has been satisfied.

Commonwealth v. Baker , 24 A.3d 1006, 1033 (Pa. Super. 2011), aff’d , 78 A.3d 1044 (Pa. 2013) (citation omitted). This Court has explained the SVP determination pr ocess as follows: After a person has been convicted of an offense lis ted in [42 Pa.C.S.A. § 9799.14], the trial [court] then orders an assessment to be done by the [SOAB] to help determi ne if that person should be classified as a[n SVP. An SVP] is defined as a person who has been convicted of a sexually violent offense . . . and who [has] a mental abnormality or personality d isorder that makes the person likely to engage in predatory sexu ally violent offenses. In order to show that the offender suffe rs from a mental abnormality or personality disorder, the evi dence must show that the defendant suffers from a congenital o r 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 p ersons. Moreover, there must be a showing that the defendan t’s conduct was predatory. . . . Furthermore, in reaching a det ermination, we must examine the driving force behind the commis sion of these acts, as well as looking at the offender’s pr opensity to reoffend, an opinion about which the Commonwealth’s e xpert isJ-S76040-14

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required to opine. However, the risk of re-offendi ng is but one factor to be considered when making an assessment; it is not an independent element. Commonwealth v. Stephens , 74 A.3d 1034, 1038–1039 (Pa. Super. 2013) (internal quotation marks, ellipsis, and cita tions omitted). 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 th e means necessary to achieve the offense; the nature of the sexual conta ct with the victim(s); the defendant’s relationship with the victim(s); the vi ctim(s)’ age(s); whether the instant offense included a display of unusual c ruelty 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 participat ed in available programs for sexual offenders; the defendant’s age; the def endant’s use of illegal drugs; whether the defendant suffers from a mental illness, mental disability, or mental abnormality; behavioral chara cteristics that contribute to the defendant’s conduct; and any other factor re asonably related to the defendant’s risk of reoffending. See 42 Pa.C.S.A. § 9799.24(b). Appellant concedes that her conduct was predatory. She argues, however, that the Commonwealth failed to prove that she suffers from a mental abnormality or personality disorder, as is r equired for an SVP determination. Appellant argues that the abnormali ty cited by Ms.J-S76040-14

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Scheuneman, hebephilia, is not a recognized mental disorder. Appellant argues that Ms. Scheuneman failed to cite the crite ria used to make a hebephilia diagnosis and explain how the particular facts of this case met those criteria and resulted in a hebephilia diagnos is. Appellant also contends that Dr. Foley’s testimony demonstrated that she do es not suffer from a mental abnormality. Hebephilia is not a listed disorder in the fourth (text revision) and/or fifth edition of the Diagnostic and Statistical Man ual of Mental Disorders (collectively “DSM”). 4 See Illinois v. New (In re Detention of New) , 21 N.E.3d 406, 409-410 (Ill. 2014) (citation omitted). Ms. Scheuneman testified that hebephilia is a paraphilia not other wise specified in the DSM. Appellant concedes that “[t]he statute does not req uire proof of a standard of diagnosis that is commonly found and/or accepted in a mental health diagnostic paradigm.” Commonwealth v. Lee , 935 A.2d 865, 884 (Pa. 2007) (citation omitted); see Appellant’s Brief at 23. Nonetheless, she argues that Ms. Scheuneman did not base her diagnos is on “reliable diagnostic or written criterion.” Id. In support of this argument, Appellant cites to Ms. Scheuneman’s testimony that individual s with hebephilia are

4 The DSM is a “categorical classification system th at divides mental disorders into types based on criteria sets with de fining features. According to [both experts], the DSM is an authoritative comp ilation of information about mental disorders and represents the best cons ensus of the psychiatric profession on how to diagnose mental disorders.” Tex. State Bd. of Exam’rs of Marriage & Family Therapists v. Tex. Med. Ass’n , 2014 WL 6651201, *3 n.1 (Tex. App. Nov. 21, 2014) (citation omitted).J-S76040-14

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attracted to victims in different age ranges. Ms. Scheuneman testified that generally individuals with hebephilia are sexually attracted to 13-15 year

olds but some individuals with the disorder are att racted to 13-16 year olds and others are attracted to 11-14 year olds. Appellant’s argument misconstrues Ms. Scheuneman’s testimony. Ms. Scheuneman testified that the diagnostic criteria f or hebephilia are attraction to young people because of the intersection of the young person’s innocence and vulnerability, and the emergence of secondary s exual characteristics. N.T., 6/3/14, at 16-17. The age brackets mentioned by Ms. Scheuneman, and relied upon by Appellant on appeal, were merely general guides as to when the innocence and vulnerability of a young per son might intersect with the emergence of secondary sexual characteristics. Thus, these age brackets were not the diagnostic criteria relied up on by Ms. Scheuneman. Accordingly, Appellant’s attack on the varying age ranges is without merit. Ms. Scheuneman explained how the application of th ose criteria to the specific factual circumstances of this case led her to conclude that Appellant has hebephilia. Specifically, she testified that A ppellant relied upon the victims’ innocence and vulnerability by threatening to commit suicide if their relationships ended. Furthermore, she testified th at Appellant told the victims that the relationships needed to be kept se cret. Appellant groomed the students, again relying on their innocence and vulnerability, by giving them gifts, watching movies together, and similar a ctivities.J-S76040-14

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Ms. Scheuneman also testified regarding Appellant’ s interest in the secondary sexual characteristics of the victims, an d other young people. Specifically, she testified regarding prior inciden ts involving young people of similar sexual maturity. See N.T., 6/3/14, at 23-26. Furthermore, the sexual activity between Appellant and the victims e videnced her interest in the secondary sexual characteristics of the victims . Thus, when viewed in the light most favorable to the Commonwealth, Ms. S cheuneman’s testimony provided sufficient evidence for the trial court to conclude that Appellant suffered from hebephilia. Appellant next contends that even if she has hebep hilia, a hebephilia diagnosis is insufficient to satisfy the mental abn ormality or personality disorder requirement. In support of this argument, Appellant cites Allen Frances and Michael B. First, Hebephilia Is Not a Mental Disorder in DSM-IVTR and Should Not Become One in DSM-5 , 39:1 J. Am. Acad. Psych. L. 78- 85 (2011). Our Supreme Court has never considered a case in which the trial court relied upon a hebephilia diagnosis in o rder to find a mental abnormality. This Court, however, has considered a hebephilia diagnosis on

one occasion. See Commonwealth v. Plucinski , 868 A.2d 20 (Pa. Super. 2005).

In Plucinski , this Court did not decide whether hebephilia was a sufficient diagnosis for purposes of an SVP determi nation. Instead, this

Court found that there was insufficient evidence to support the trial court’sJ-S76040-14

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SVP determination because the Commonwealth’s expert ’s own testimony “call[ed] into question the identification of hebep hilia as the primary impetus for [Plucinski’s] behavior.” Id. at 27 (internal quotation marks omitted). Instead, the lack of sexual intercourse between Plu cinski and his wife led to Plucinski seeing his step-daughter as a sexual outl et. Id. This testimony severed the necessary link between a mental disorde r and the likelihood of Plucinski’s involvement in predatory sexual behavio r. Furthermore, Plucinski is distinguishable from the case at bar because several statutory factors were not present in that case. For example, Plucinski did not use unnecessary means in his crime and he had a single victim. Id. As discussed more fully below, the trial court in this case found that both of these factors weigh in favor of an SVP determination. Accordingly, our rejection of the hebephilia diagno sis in Plucinski was a fact-intensive determination and has little bearing on Appellant’s broad attack on the use of hebephilia diagnoses in SVP pr oceedings. 5 Instead, we find instructive decisions from our si ster states. In New

York v. Shannon S. , 980 N.E.2d 510, 514–515 (N.Y. 2012), the Court of Appeals of New York (New York’s court of last resor t) held that a hebephilia diagnosis was sufficient to sustain the trial court ’s finding of a mental

5 Furthermore, this Court has since noted that our “ Supreme Court in [ Commonwealth v. Meals , 912 A.2d 213 (Pa. 2006)] disapproved this Court's re-weighing of the [statutory] factors [as this Court did in Plucinski ].” Commonwealth v. Morgan , 16 A.3d 1165, 1173 (Pa. Super. 2011), appeal denied , 38 A.3d 824 (Pa. 2012).J-S76040-14

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abnormality. In Shannon S. , the defendant made the same argument as is advanced by Appellant in the case at bar – “hebephi lia is neither abnormal nor deviant as most [individuals] are sexually attr acted to fully formed pubescent [individuals of the opposite sex].” Id. at 513 (internal quotation marks omitted). The Court of Appeals rejected that argument and held that an individual with hebephilia has a mental abnormal ity. It concluded that,

under the facts of Shannon S. , the state had proven by clear and convincing evidence that Shannon S. had “a strong p redisposition to commit sex offenses, and such an inability to control beha vior, that the person is likely to be a danger to others and to commit sex o ffenses[.]” Id. at 515 (citations omitted). Likewise, in Wamstad v. Corman (In re Corman) , 845 N.W.2d 335, 340 (N.D. 2014), the defendant argued that “hebephi lia is not a mental

disorder and will not be included in the DSM–5.” T hus, Corman contended that the hebephilia diagnosis was insufficient to f ind that he “ha[d] a congenital or acquired condition that [wa]s manifes ted by a sexual disorder, a personality disorder, or other mental disorder or dysfunction.” Id. (citations omitted). The Supreme Court of North Da kota rejected Corman’s argument and held the evidence was sufficient to fi nd that he suffered from

a mental disorder. Id. It relied upon the state’s expert witness’ testim ony and the fact that Corman’s interest in young people had manifested itself on multiple occasions over several years. Id. at 341. The same is true in theJ-S76040-14

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case at bar. As noted above, Ms. Scheuneman testif ied regarding prior incidents involving Appellant and pubescent young p eople. Similarly, in Massachusetts v. McKinley , 5 N.E.3d 2 (table) (Mass. App. Ct. 2014) ( per curiam ), the defendant argued the evidence was insufficient to prove that he had a mental abnormal ity. As in the case at bar, the Commonwealth’s expert in McKinley testified that the defendant suffered from a paraphilia not otherwise specified in the DSM. Specifically, she testified that McKinley suffered from hebephili a. Also, as in the case at bar, McKinley argued that the debate within the sci entific community regarding hebephilia precluded a finding that he su ffered from a mental abnormality. The appellate court rejected that arg ument and held that the scientific debate regarding hebephilia went to the weight of the evidence – not its sufficiency. Thus, it concluded that the C ommonwealth’s expert’s diagnosis of hebephilia was sufficient to find that the defendant had a mental abnormality. The federal appellate courts have also held that h ebephilia can be a “serious mental illness, abnormality, or disorder.” 18 U.S.C. § 4247(a)(6). For example, in United States v. Carta , 592 F.3d 34, 38 (1st Cir. 2010), the defendant’s expert “asserted that hebephilia wa s not a generally accepted diagnosis in the mental health community, did not fit within the DSM definition of paraphilia[,] lacked diagnostic c riteria[,] and could not be consistently defined.” The United States Court of Appeals for the FirstJ-S76040-14

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Circuit rejected that argument, and held that a dia gnosis of paraphilia not otherwise specified – hebephilia was sufficient to find the defendant had a mental abnormality or disorder. Id. at 40. Relying on Carta , the United States Court of Appeals for the Fourth Circuit also held “that hebephilia, as colloquially understood, is a § 4247(a)(6) illness, abnormality, or disorder.” United States v. Caporale , 701 F.3d 128, 137 n.4 (4th Cir. 2012) (internal quotation marks omitted). We agree with these courts that the debate surroun ding hebephilia diagnoses, and their use in SVP proceedings, goes t o the weight of the expert witness’ testimony. 6 In this case, Appellant does not challenge the weight of the evidence. Rather, she challenges whe ther the evidence was

sufficient to conclude that she is an SVP. Therefo re, we hold 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. In this case, the trial court credited Ms. Scheuneman’s testimony regarding hebephilia. Therefore, the tri al court’s finding that Appellant suffered from a mental abnormality is sup ported by the record.

6 We recognize that at least one jurisdiction has re fused to hold that hebephilia can be used to support a finding of a me ntal abnormality. In New the Supreme Court of Illinois held that a Frye hearing was required prior to determining if a hebephilia diagnosis was sufficient to involuntarily commit a sexual predator. New , 21 N.E.3d at 412-417. In this case, however, Appellant did not seek a Frye hearing before the trial court. Accordingly, any argument that a Frye hearing should have been conducted is waived. See Pa.R.A.P. 302(a).J-S76040-14

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Having determined that a hebephilia diagnosis is su fficient for the trial court to find a mental abnormality, we next turn to the trial court’s consideration of the 15 statutory factors. As to t he first factor, the offense involved multiple victims. As to the second factor , the trial court found that Appellant slightly exceeded the means necessary to achieve the offense. “Specifically, [Appellant] offered the victims favo rs, special time with her[,] and gifts of jewelry.” Trial Court Opinion, 7/30/1 4, at 5. As to the third factor, the nature of the sexual conduct was oral s ex. As to the fourth factor, Appellant served as the as sistant coach on the girls’ soccer team at Altoona High School and the v ictims were members of that team. The trial court found that Appellant “u sed that relationship to exploit their trust[.]” Id. at 6. As to the fifth factor, the victims were 15 and 16 years old at the time of the offenses. As t o the sixth factor, the trial court found that Appellant did not display unusual cruelty during the

commission of the offense. As to the seventh facto r, the trial court found that Appellant used one of the victim’s emotional v ulnerability to manipulate her. As to the eighth, ninth, and tenth factors, A ppellant had no prior criminal history. As to the eleventh factor, Appellant was 22 years o ld at the time of the offense. As to the twelfth factor, there is no evi dence that Appellant used illegal drugs. As to the thirteenth factor, as dis cussed in greater detail above, the trial court found that Appellant suffere d from a mentalJ-S76040-14

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abnormality, i.e. , hebephilia. As to the fourteenth factor, the tri al court found that Appellant groomed her victims. As to th e final factor, the trial

court found no other circumstances relevant to the SVP inquiry. Appellant argues that Dr. Foley’s testimony proves that she is not an SVP. We, as an appellate court, are required to vi ew the evidence in the light most favorable to the Commonwealth when revie wing the sufficiency of

the evidence for an SVP determination. The trial c ourt made a credibility

determination and chose to believe Ms. Scheuneman o ver Dr. Foley. We may not disturb that credibility determination. Wh en viewed in the light most favorable to the Commonwealth, the evidence is sufficient to support

the trial court’s SVP determination. To the extent that Appellant argues that the trial court erred as a matter of law by discrediting Dr. Foley’s testimony , we find that argument

likewise to be without merit. The trial court foun d Dr. Foley’s report to be lacking and his focus on the risk of recidivism to be misplaced. This was legally correct as “the risk of re-offending is but one factor to be considered when making an assessment; it is not an independent element.” Stephens , 74 A.3d at 1039 (citation omitted). In sum, the trial court carefully weighed all of t he statutorily mandated factors and concluded that the evidence proved, by clear and convincing evidence, that Appellant is an SVP. We ascertain n o error of law or abuse ofJ-S76040-14

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discretion in this determination. Accordingly, we affirm the order of the trial court designating Appellant a sexually violent pred ator. Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 2/19/2015