J-A19017-14 

* Former Justice specially assigned to the Superior Court. 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

CHARLES BENTON SOUTH 

 Appellant No. 484 WDA 2013 

Appeal from the Judgment of Sentence November 15, 2012 

In the Court of Common Pleas of Allegheny County 

Criminal Division at No(s): CP-02-CR-0006300-2012 

BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ. 

MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 22, 2014 

 Appellant, Charles Benton South, appeals from the judgment of 

sentence entered on November 15, 2012 in the Criminal Division of the 

Court of Common Pleas of Allegheny County, as made final by the denial of 

post-sentence motions on February 15, 2013. On appeal, Appellant 

challenges the trial court’s determination that the Commonwealth proved by 

clear and convincing evidence at an assessment hearing that he met the 

criteria for designation as a sexually violent predator (SVP) under Megan’s 

Law, 42 Pa.C.S.A. §§ 9792 (statutory definitions) and 9795.4 (hearing 

procedures).1

 After careful review, we affirm. 

____________________________________________ 

1

 Revisions to Megan’s Law that took effect on December 20, 2012 now 

provide for an assessment hearing and define the criteria for sexually violent 

predator at 42 Pa.C.S.A. §§ 9799.24 (assessments) 9799.12 (definitions). 
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 The trial court summarized the undisputed facts as follows: 

The incidents that ultimately led to Appellant’s guilty plea 

occurred between January of 2010 and December of 2011, and 

involved seven female victims between the ages of thirteen and 

seventeen. Appellant engaged in illegal sexualized electronic 

conversations with the victims and sent sexualized pictures and 

video to some of the victims. Appellant solicited and received 

sexualized photographs from some of the victims, one of whom 

was an undercover agent with the Pennsylvania State Attorney 

General’s Office. [On November 15, 2012, Appellant pled guilty 

to four counts of unlawful contact with minors (18 Pa.C.S.A. 

§ 6318(a)(4)), seven counts of criminal use of communication 

facilities, (18 Pa.C.S.A. § 7512(a)), two counts of contact or 

communication with a minor – sexual abuse, (18 Pa.C.S.A. 

§ 6318(a)(5)), and four counts of possession of child 

pornography, (18 Pa.C.S.A. § 6312(d)(1)).] After his plea but 

prior to sentencing, th[e trial c]ourt ordered an SVP assessment 

for Appellant pursuant to 42 P.S. § 9799.24. The Pennsylvania 

Sexual Offender Assessment Board (SOAB) selected Dr. Alan

Pass to conduct the SVP assessment. 

At the SVP hearing, Dr. Pass testified that he conducted an SVP 

assessment on Appellant on October 1, 2012. Dr. Pass 

completed the examination and interview on October 17, 2012. 

According to Dr. Pass’s testimony, the SOAB assessment 

included analysis of the facts of Appellant’s current offense, prior 

offense history, other relevant characteristics of the individual 

and factors that are supported in the sexual offender assessment 

field as criteria reasonably related to the risk of re-offense. Dr. 

Pass testified that he found Appellant’s behavior met the 

classification criteria for a mental abnormality, specifically 

Paraphilia NOS,[] as well as the statutory definition of predatory 

behavior. Dr. Pass found that because Appellant targeted 

multiple victims over an extended period of time, and suffers 

from a mental abnormality (Paraphilia NOS), the likelihood of 

appellant reoffending was high. Therefore, according to Dr. 

Pass, Appellant met the classification criteria for SVP. 

 

Appellant selected [Dr.] David Gentile as his expert witness. 

[Dr.] Gentile testified that he would not classify Appellant as a 

SVP based on the results of the several actuarial risk assessment 

tools he employed during his evaluation of Appellant,
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specifically: the Able Assessment for Sexual Interest (AASI), the 

Minnesota Multiphasic Personality Inventory (MMPI), the Sexual 

Violence Risk-20 (SVR20) and the Static 99. [Dr.] Gentile 

testified that the MMPI results indicated Appellant did not exhibit 

issues consistent with personality disorders. The AASI indicated 

that Appellant had no persistent deviant sexual interest in preschool-aged boys, pre-school-aged girls, grade-school-aged 

boys, and grade-school-aged girls. [Dr.] Gentile testified that 

the results of the AASI made a diagnosis for Paraphilia NOS 

inappropriate. [Dr.] Gentile called into question Paraphilia NOS 

as a valid mental health diagnosis, testifying that he believed it 

to be a “garbage can” diagnosis, used often in SVP cases in 

order to establish the criteria for mental abnormality. 

Trial Court Opinion, 6/20/13, at 3-5 (footnote omitted). 

 At the conclusion of Appellant’s assessment hearing, the trial court 

credited the testimony of Dr. Pass and determined that Appellant met the 

statutory criteria for SVP designation. The court also sentenced Appellant to 

111⁄2 to 23 months of intermediate punishment, followed by five years of 

probation. Appellant moved for post-sentence relief, alleging that the 

Commonwealth’s evidence was insufficient and that the trial court’s 

determination was against the weight of the evidence. The trial court denied 

Appellant’s motion on February 15, 2013. Thereafter, Appellant filed a 

timely notice of appeal on March 15, 2013. The trial court directed Appellant 

to file a concise statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(b) and, on April 5, 2013, Appellant timely complied. The 

trial court issued its opinion on June 20, 2013. 

 Appellant raises the following questions for our review: 

Was the evidence sufficient to support the [trial] court’s 

determination that [Appellant] is a sexually violent predator? 
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Whether the [trial] court’s determination that [Appellant] is a 

sexually violent predator is against the weight of the evidence? 

Appellant’s Brief at 1. 

 Appellant’s first claim challenges the trial court’s determination that he 

should be classified as an SVP pursuant to Megan’s Law. Appellant asserts 

that the Commonwealth failed to present clear and convincing evidence to 

establish that he meets the requirements for said classification. 

Where a person stands convicted of an offense listed in 42 Pa.C.S.A. 

§ 9795.1, the trial court must order that the individual be assessed by the 

board. 42 Pa.C.S.A. § 9795.4(a). After the board prepares its assessment 

and submits it to the Commonwealth, the court conducts a hearing at which 

the Commonwealth must prove by clear and convincing evidence that the 

individual should be designated as an SVP. 42 Pa.C.S.A. § 9795.4(e). In 

this context, the clear and convincing standard means that the evidence 

offered in support of SVP classification must be so clear, direct, weighty, and 

convincing that the factfinder may arrive at a clear conclusion, without 

hesitation, that the SVP classification is proper. Commonwealth v. Meals,

912 A.2d 213, 219 (Pa. 2006). 

Our standard of review is clear when a defendant challenges the 

sufficiency of the evidence offered in support of his SVP designation. We 

may not weigh the evidence presented to the trial court and we may not 

make credibility determinations. Commonwealth v. Geiter, 929 A.2d 648, 
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650 (Pa. Super. 2007), appeal denied, 940 A.2d 362 (Pa. 2007). Instead, 

we view all the evidence and its reasonable inferences in a light most 

favorable to the Commonwealth. Commonwealth v. Moody, 843 A.2d 

402, 408 (Pa. Super. 2004), appeal denied, 882 A.2d 477 (Pa. 2005). We 

will disturb an SVP designation only where the Commonwealth did not 

present clear and convincing evidence to enable the court to find each 

element required by the SVP statute. Id.

Expert reports, as well as expert testimony, may constitute 

substantive evidence which establishes the statutory prerequisites for SVP 

classification. Meals, 912 A.2d at 223. In addition, although a defendant 

may refute such evidence by contesting its credibility or reliability before the 

court, such challenges are directed to the weight, not the sufficiency, of the 

Commonwealth's case. Id. at 224. Thus, they do not affect our sufficiency 

analysis. Commonwealth v. Feucht, 955 A.2d 377, 380-382 (Pa. Super. 

2008), appeal denied, 963 A.2d 467 (Pa. 2008). 

The Pennsylvania Legislature has defined the SVP classification as 

follows: 

A person who has been convicted of a sexually 

violent offense as set forth in [42 Pa.C.S.A. 

§] 9795.1 (relating to registration) and who is 

determined to be a sexually violent predator under 

[42 Pa.C.S.A. §] 9795.4 (relating to assessments) 

due to a mental abnormality or personality disorder 

that makes the person likely to engage in predatory 

sexually violent offenses. 
J-A19017-14 

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42 Pa.C.S.A. § 9792. There is no dispute in this case that Appellant has 

been convicted of a qualifying offense which satisfies the first element of the 

SVP designation under § 9792. The issue in this case is whether the 

Commonwealth adduced clear and convincing evidence to establish that 

Appellant qualified as a sexually violent predator under § 9795.4 due to a 

mental abnormality or personality disorder that makes him likely to engage 

in predatory sexually violent offenses. 

Section 9795.4 sets forth the following assessment factors: 

(b) Assessment. 

Upon receipt from the court of an order for an 

assessment, a member of the board as designated 

by the administrative officer of the board shall 

conduct an assessment of the individual to 

determine if the individual should be classified as a 

sexually violent predator. The board shall establish 

standards for evaluations and for evaluators 

conducting the assessments. 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; 
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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 of the individual; 

 (ii) use of illegal drugs by the individual; 

(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. § 9795.4. 

 With respect to these assessment factors, there is no statutory 

requirement that all of them, or any particular set of them, need be present 

in order to support an SVP designation. Meals, 912 A.2d at 220-223. The 

factors are not a checklist, with each one demonstrating in some fashion 

that an SVP classification has, or has not, been established. Id. at 222. 

Rather, the presence or absence of one or more factors may simply suggest 

the presence or absence of one or more particular types of mental 
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abnormalities. See id. at 221. For this reason, although the board must 

examine all the factors listed under § 9795.4, the Commonwealth need not 

show that any one factor is present, or absent, in a particular case. Id. 

Finally, under Megan’s Law, a mental abnormality is defined 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.A. § 9792. 

Moreover, a sexually violent offense is considered predatory in nature if it is 

“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.” Id. Again, the central inquiry for the 

trial court in this case, as in every case, is whether the Commonwealth's 

evidence, including the board's assessment, shows that an individual who 

has been convicted of a qualifying offense suffers from a mental abnormality 

or disorder which makes that person likely to engage in predatory sexually 

violent offenses. 42 Pa.C.S.A. § 9792. 

To establish that Appellant qualified for SVP designation under Megan’s 

Law, the Commonwealth relied upon the assessment report prepared by Dr. 

Pass, a member of the board, together with Dr. Pass’ testimony at the SVP 

hearing. Appellant stipulated that Dr. Pass qualified as an expert in forensic 

psychiatry. In addition, Dr. Pass identified the documents that he received 
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and reviewed in preparing the opinions he offered in this case, including the 

SOAB informed consent form, various investigative reports, the criminal 

information filed against Appellant, correspondence from Appellant’s counsel, 

and Appellant’s criminal offense history. Dr. Pass also interviewed Appellant 

as part of his assessment. The report and testimony offered by Dr. Pass 

referred to the factors specified in § 9795.4 and provided his analysis and 

commentary as to how he evaluated Appellant’s background information, 

including the facts pertaining to the present offenses, in light of each factor 

enumerated in the statute. Counsel for Appellant had an opportunity to 

cross-examine Dr. Pass at the SVP hearing. 

Based on his assessment of Appellant, Dr. Pass determined that 

Appellant met the criteria for paraphilia not otherwise specified.2

 Dr. Pass 

also concluded that Appellant had engaged in predatory behavior as defined 

by Megan’s Law because he targeted multiple victims over an extended 

____________________________________________ 

2

 Paraphilia not otherwise specified is coded in the DSM-IV under 

classification code 302.9. The “DSM-IV” is a manual used for the diagnosis 

and classification of mental disorders. Elaborating upon his conclusion that 

Appellant met the classification for paraphilia not otherwise specified, Dr. 

Pass testified that the essential features in paraphilias which are associated 

with sexual disorders are recurrent intense sexual-arousing fantasies, sexual 

urges or behaviors generally involving nonhuman objects, the suffering or 

humiliation of one’s self or one’s partner or children or other nonconsenting 

persons that occur over a period of at least six months. This diagnostic 

classification is offered also if the behavior, sexual urges or fantasies cause 

clinically significant distress or impairment in social, occupational or other 

important areas of self-functioning for the defendant. N.T., 11/15/12, at 19-

22.
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period of time and because he initiated these relationships to promote and 

maintain victimization. Dr. Pass also testified that Appellant’s mental 

abnormality made it likely that he would re-offend. Based upon his 

consideration of these factors, Dr. Pass concluded that Appellant qualified for 

SVP designation under Megan’s Law. 

Viewing Dr. Pass’ report and expert testimony in the light most 

favorable to the Commonwealth, we conclude that there was clear and 

convincing evidence presented to the trial court in support of Appellant’s SVP 

designation. Thus, Appellant’s claim of insufficiency has no merit. 

Appellant raises various contentions in his brief to support the claim 

that the evidence introduced at his SVP hearing was insufficient to classify 

him as a sexually violent predator. For example, he points out that he had 

no physical contact with the victims, that he initiated psychological 

treatment following his arrest, and that he continues in treatment now. 

Appellant also relies upon the findings of his expert, Dr. Gentile. These 

included: 1) Dr. Gentile’s conclusion that Appellant did not fit the diagnosis 

of paraphilia not otherwise specified; 2) Dr. Gentile’s conclusion that 

Appellant did not meet the criterion for a mental abnormality; 3) Appellant’s 

lack of a criminal history or history of drug or alcohol abuse; 4) the absence 

of escalation in Appellant’s offenses; and 5) the results of psychological 

testing which showed that Appellant possessed only a low-to-moderate risk 

of re-offense. Given our conclusion that the Commonwealth adduced 
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sufficient evidence to support Appellant’s SVP designation, these arguments 

relate primarily to the weight and credibility of the Commonwealth's 

evidence and are not matters that we ordinarily entertain in a sufficiency 

challenge. See Feucht, 955 A.2d at 382-383. 

Appellant also argues that the opinion of this Court in 

Commonwealth v. Krouse, 799 A.2d 835, 840 (Pa. Super. 2002) (en 

banc), appeal denied, 821 A.2d 586 (Pa. 2003), authorizes us to re-assess 

the evidence on appellate review of an SVP designation. Krouse, however, 

was thoroughly repudiated by our Supreme Court in Meals, 912 A.2d at 

222-223 (disapproving Krouse, restricting “[t]he task of the Superior Court 

[to] one of review, and not of weighing and assessing evidence in the first 

instance,” and observing that the panel in Krouse “stepped beyond its 

authority when it reweighed the evidence, giving more weight to “absent” 

factors than to those found and relied upon by the trial court, and ignoring 

the Commonwealth's expert's explanation of the relevance of the absent 

factors”). Hence, Krouse affords Appellant no basis for relief. For each of 

these reasons, Appellant’s sufficiency challenge fails. 

Appellant next claims that the trial court’s SVP determination was 

against the weight of the evidence. Appellant’s weight claim rests largely 

upon the same facts and assertions offered in support of his sufficiency 

challenge. Specifically, Appellant alleges that: 1) Dr. Pass’ diagnosis of 

paraphilia not otherwise specified was vague and unreliable; 2) the SOAB 
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evaluation was based solely on police reports; 3) there was nothing in 

Appellant’s history or his SOAB evaluation that supported a diagnosis of 

paraphilia not otherwise specified; and, 4) Dr. Gentile conducted a far more 

thorough forensic investigation of Appellant which concluded, credibly and 

reliably, that Appellant did not have a mental disorder and was not likely to 

re-offend. See Appellant’s Brief at 11-14. 

Our standard of review of a weight of the evidence claim is for 

an abuse of discretion. Appellate review is limited to whether 

the trial judge's discretion was properly exercised, and relief will 

only be granted where the facts and inferences of record disclose 

a palpable abuse of discretion. Indeed, it is oft-stated that the 

trial court's denial of a motion for a new trial based on a weight 

of the evidence claim is the least assailable of its rulings. We 

discern no basis on which to distinguish our standard of review 

on weight claims, whether challenging the weight of the 

evidence to support a guilty verdict or a trial court's SVP 

determination. A defendant must put the issue before the trial 

court in the first instance because: 

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. 

Commonwealth v. Ratushny, 17 A.3d 1269, 1272 (Pa. Super. 2011) 

(citations and internal quotations omitted). 

After careful review, we are satisfied that the record supports the trial 

court’s findings and that the court’s legal conclusions are sound. Because 

we can discern no abuse of the trial court’s discretion, we are without 

grounds to disturb the court’s SVP determination. Accordingly, Appellant is 

not entitled to relief on his weight claim. 
J-A19017-14 

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Judgment of sentence affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/22/2014