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NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. VINCENT YANT Appellant No. 1393 EDA 2016

Appeal from the Judgment of Sentence April 15, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP
- 51
-CR
-0002716
-2015
BEFORE: OLSON, STABILE, and MUSMANNO, JJ. MEMORANDUM BY STABILE, J.: FILED MAY 17, 2017 Appellant, Vincent Yant, appeals from the April 15, 2016 judgment of sentence entered in the Court of Common Pleas of Philadelphia County (“trial court”) sentencing Appellant to 31⁄2
-7 years’ incarceration foll owed by 10 years’ probation, and classifying Appellant as sexually violent predator (“SVP”) for false imprisonment, stalking, indecent assault, indecent exposure, and harassment. 1 Appellant is challenging the trial court’s classification of Appellant as a n SVP. Upon review, we affirm. Briefly, Appellant was arrested on November 16, 2014, in connection with two incidents, one on August 31, 2014, and another on October 26, 2014. During the first incident, Appellant “followed the seventeen year old

____________________________________________ 1 18 Pa.C.S.A. §§ 2903, 2790.1, 3126, 3127, and 2709 respectively.J
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female victim, a stranger to him, after she got off public transportation, grabbed her[,] and attempted to drag her into an empty lot and assault her; the victim’s screams caught the attention of a passerby.” Trial Court Opinion, 8/15/16, at 2. In the second i ncident, Appellant “followed the victim, also a stranger to him, after she exited public transportation, exposed himself and began masturbating, then fled.” Id. Appellant entered a negotiated guilty plea on October 13, 2015, during which he was made awa re that he would be subject to an SVP assessment. The trial court held an SVP hearing on April 15, 2016, after which the trial court found Appellant to be an SVP. Appellant did not file any post
-sentence motions but filed a timely notice of appeal on April 27, 2016. Appellant’s trial counsel filed a motion to withdraw, which the trial court granted on May 13, 2016, and appointed appellate counsel. On June 1, 2016, the trial court directed Appellant to comply with Pa.R.A.P. 1925(b). After granting Appel lant an extension, Appellant filed a Rule 1925(b) statement on July 18, 2016. The trial court entered a Pa.R.A.P. 1925(a) opinion on August 15, 2016. Appellant raises one issue on appeal: “Was the evidence insufficient to support the finding that Appell ant was an SVP?” Appellant’s Brief at 3. Our standard of review for a sufficiency challenge to an SVP designation is well established. 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 anyJ
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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 determin ation 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) (quoting Commonwealth v. Baker, 24 A.3d 1006, 1033 (Pa. Super. 2011), aff’d, 78 A.3d 1044) (Pa. 2013) (citation omitted) (alteration in original)). After a defendant has been convicted of an enumerated offense, 2 the trial court orders the Sexual Offender Assessment Board (“SOAB”) to conduct an assessment to determine whether a defendant should be designated an SVP. Id. (citing Commonwealth v. Stephens, 84 A.3d 1034, 1038
- 39 (Pa. Super. 2013)). At the SVP hearing the Commonwealth must establish that the defendant has been convicted of an enumerated offense, and has “a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses. . .. Moreover, there must be a showing that the defendant’s conduct was predatory.” Id. (quoting Stephens 84 A.3d at 1038
- 39). When conducting the assessment, the SOAB is required to address a number of factors. 42 Pa.C.S.A. § 9799.24(b). 3 Additionally, the Commonwealth’s expert is

____________________________________________ 2 See 42 Pa.C.S.A. § 9799.14.
3 An assessment shall include, but not be limited to, an examination of the following: (1) Facts of the current offense, including: (Footnote Continued Next Page)J
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(Footnote Continued)

_______________________

(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. (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 abnormal ity. (iv) Behavioral characteristics that contribute to the individual’s conduct. (4) Factors that are supported in sexual offender assessment field as criteria reasonably related to the risk of re
-offense. 42 Pa.C.S.A. § 9799.24.J
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required to give an opinion regarding the defendant’s propensity to reoffend. Hollingshead, 111 A.3d at 189. In the matter sub judice, the Commonwealth presented the report of Dr. Barry Zakireh of the SOAB. 4 See N.T. Sentencing, 4/15/16, at Ex. C
- 1. After review of the record, including the report of Dr. Zakireh, the briefs, and the law, the trial court’s August 15, 2016 opinion adequately addresses Appellant’s sufficiency claim. Appellant was convicted of an enumerated offense, the report of Dr. Zakireh addresses all of the factors listed in section 9799.24(b) of the act, Dr. Zakireh determined that Appellant has a personality disorder that makes Appellant likely to engage in predatory conduct, and Appellant’s conduct was predatory in nature. See id. In conclusion, we find that Appellant’s claim is meritless. Therefore we
affirm the judgment of sentence. We direct that a copy of the trial court’s August 15, 2016 opinion be attached to any future filings in this case.

____________________________________________ 4 The parties stipulated as to the admissibility of the report and that if called to testify Dr. Zakireh would testify consistent to the report. N.T. Sentencing, 4/15/16, at 8. The trial court admitted the report into evidence as Ex. C
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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/17/2017Circulated 04/27/2017 05:33 PM

COURT OF COMMON PLEAS PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA TRIAL DIVISION -CIVIL

COMMONWEALTH OF PENNSYLVANIA

v. VINCENT YANT Appeal No.: 1393 EDA 

### 2016 OPINION 

### CP-51-CR-0002716-2015 

# FILED

AUG 1 6 2016 Criminal Appeals Unit First Judicial District of PA 

### Appellant, Vincent Yant, 

### appeals from 

### the 

### judgment of 

### sentence entered
on April 15, 

### 2016, 

### and the 

### Court's determination 

### that he 

### meets the criteria for 

### classification 

### as a 

### Sexually Violent 

### Predator based upon the 

### evaluation by 

### the Sexual Offender 

### Assessment Board. A 

### summary of 

### the facts 

### and procedural history follows. 

### Appellant was 

### accepted into 

### the Mental 

### Health 

### Court (MHC) on 

### July 11, 

### 2013 after a 

### mental 

### health and psychiatric evaluation determined 

### that he was 

### not competent to go to 

### trial on 

### robbery 

### and related charges. As is 

### the policy in MHC, 

### appellant's case was reviewed every 

### 30-60 days to 

### monitor his mental 

### health treatment and competency. Appellant 

### subsequently regained competency, and, on April 10, 

### 2014, 

### entered a 

### guilty plea to 

### robbery in 

### exchange for a 

### sentence of 11 1/2-23 

### months incarceration followed by 4 

### years probation (CP-51-CR-0008263-2012). Appellant was 

### reported to be in 

### compliance with 

### his 

### treatment and medication programs 

### at the 

### 5/22/ 14, 

### 6/2/14, 7/3/14, 8/21/14, 9/4/14 and 

### 10/2/14 review 

### hearings. On



### OttNovember 16, 

### 2014, 

### appellant was 

### arrested and charged with 

### criminal 

### attempt



### - kidnaping for 

### ransom; unlawful 

### contact with a 

### minor 

### - sexual offense; 

### unlawful 

### restraint/serious bodily 

### injury, false 

### imprisonment; stalking 

## - repeatedly commit 

### acts to 

### cause fear; simple 

### assault; recklessly 

### endangering another person; 

### harassment 

### - subject other to 

### physical contact; 

### and indecent 

### assault, with a 

### criminal act of 

### 10/26/14 (CP-51-CR-0002716-2015).1 On 

### that

same date, 

### appellant was also 

### charged with 

### indecent exposure and 

### harassment with a 

### criminal 

### act date of 

### August 31, 

### 2014 (MC-51-CR-0039181-2014).2 The

new 

### arrests represented potential direct violations of the 

### robbery 

### sentence, and

a violation 

### hearing was 

### scheduled before 

### the Court. 

### Pursuant to a 

### rule 701 motion for 

### consolidation, the new 

### charges were 

### transferred to MHC, 

### and, on 

### October 13, 

### 2015, following a 

### thorough colloquy, 

### appellant entered a negotiated guilty plea to false 

### imprisonment, stalking, 

### indecent 

### assault, indecent exposure and 

### harassment. The 

### facts to 

### which 

### appellant pleaded guilty were, in CP-51- CR- 

### 0002716-2015, 

### that he followed 

### the 

### seventeen year old female victim, a 

### stranger to him, 

### after she got off of 

### public 

### transportation, grabbed her and 

### attempted to 

### drag 

### her into an empty lot 

### and 

### assault her; 

### the victim's 

### screams 

### caught the 

### attention of a 

### passerby, and in 

### MC-51-CR-0039181-2014, 

### that he followed 

### the victim, 

### also a 

### stranger to him, 

### after she exited 

### public 

### transportation, exposed 

### himself and began 

### masturbating, then fled. 

### Appellant

was also made 

### aware 

### that the guilty 

### plea would 

### subject him to a 

### sexually

18 Pa.C.S.A. §§§ 901(a); 6318 (a)(1); 2902 (a)(1); 2903 (a); 2709.1 (a)(1); 2701(a); 2705; 2709 (a)(1); and 3126 (a)(2), respectively. 218 Pa.C.S.A. §§ 3127 (a); 2709 (a)(1) 2violent 

### predator (SVP) 

### assessment 

### pursuant to 

### Pennsylvania's version of "Megan's Law," 

### the Sex Offender 

### Registration and Notification Act, 42 Pa.C.S.A.
§ 

### 9799.10 et. seq. (the Act). 

### Sentencing was deferred 

### pending receipt of a 

### presentence investigation report, guideline calculation, 

### mental 

### health evaluation 

### and a 

### Megan's Law 

### assessment. Appellant's SVP 

### hearing was held on April 15, 

### 2016. At 

### that time, 

### there

was a 

### stipulation by 

### and between 

### counsel 

### that if Barry 

### Zakireh, Ph.D., a duly 

### appointed member of 

### the 

### Pennsylvania Sex Offender 

### Assessment Board (SOAR), 

### was 

### present, he would testify 

### consistent with 

### the 

### report, and, 

### instead of live 

### testimony, 

### counsel would 

### just refer to 

### the report. In 

### his report, Dr. 

### Zakireh 

### determined to a 

### reasonable degree of 

### professional 

### certainty 

### that appellant met the 

### statutory criteria for 

### classification as a 

### sexually violent 

### predator. The 

### Court thoroughly reviewed 

### the 

### report from Dr. 

### Zakireh and 

### appellant's comments to 

### the 

### Court 

### at the 

### hearing. At 

### the 

### conclusion of the SVP 

### hearing, the Court found 

### that the Commonwealth 

### has met its 

### burden and 

### that appellant met the 

### criteria to be 

### classified as a sexually violent 

### predator. Thereafter, 

### appellant was 

### sentenced to 3 1/2-7 

### years incarceration followed by 10 

### years probation.3 This 

### appeal followed. 

### Appellant first 

### complains 

### that the evidence was 

### insufficient to 

### sustain the finding 

### that he is a 

### sexually violent 

### predator. As a 

### general rule, [the] 

### standard of review of 

### a 

### trial 

### court's evidentiary ruling

... is limited to

The violation hearing was conducted following the SVP hearing. Appellant was found to be in direct violation of his probation.
3

### determining 

### whether the 

### trial 

### court 

### abused its discretion. An 

### abuse of 

### discretion may 

### not be 

### found merely 

### because an appellate 

### court might have 

### reached a different conclusion, 

### but requires a 

### result of 

### manifest 

### unreasonableness, or 

### partiality, prejudice, bias, or or 

### such lack of 

### support so 

### as to be clearly 

### erroneous. Commonwealth v. Dengler, 586 Pa. 54, 65, 890 A.2d 

### 372, 379 (2005). The scope of review is 

### plenary. Commonwealth

v. Brooks, 7 A.3d 

### 852 

### (Pa.Super.2010). A 

### challenge to 

### the sufficiency of the evidence to 

### support an SVP 

### designation requires the reviewing 

### court to 

### accept the 

### undiminished record of 

### the case in 

### the light most favorable to 

### the Commonwealth. Commonwealth v. 

### Prendes, 2014 PA 

### Super 151, 97 A.3d 337, 356, (2014) 

### citing Commonwealth v. Meals, 

### 590 Pa. 110, 119, 

### 912 A.2d 213, 218 (2006). The reviewing 

### court 

### must examine all of 

### the 

### Commonwealth's evidence 

### without consideration of 

### its 

### admissibility. Id.
A 

### "sexually violent 

### predator" is defined, in 

### pertinent part, as "[a] 

### person who 

### has been convicted of a 

### sexually violent offense

... 

### and who is 

### determined
to be a 

### sexually violent 

### predator 

### under section [9799.24] 

### (relating to 

### assessments) due to a 

### mental abnormality or 

### personality 

### disorder 

### that makes the 

### person likely to engage in 

### predatory sexually violent offenses." 42 Pa.C.S.A. § 

### 9792; 

### Commonwealth v. 

### Fletcher, 947 A.2d 776, 

### 776-77 (Pa.Super.2008). The 

### process of 

### determining SVP 

### status is 

### statutorily-mandated and welldefined. To 

### deem 

### an individual a 

### sexually violent 

### predator, the Commonwealth 

### must first show 

### that [the individual] 

### has been convicted of a 

### sexually violent offense 

### as set forth in 42 Pa.C.S.A. § 

### 9799.14. Commonwealth v. Askew, 907

4A.2d 

### 624, 629 

### (Pa.Super.2006). Secondly, the 

### Commonwealth 

### must show by clear 

### and convincing evidence 

### that the individual has a 

### mental abnormality or 

### personality 

### disorder 

### that makes [him] likely to engage in 

### predatory sexually violent offenses. Id. An 

### expert's opinion, which is 

### rendered to 

### a 

### reasonable degree of 

### professional certainty, is 

### itself evidence. 

### Commonwealth v. 

### Fuentes, 991 A.2d 

### 935, 944 (Pa.Super.2010). At 

### the core of the 

### expert's 

### assessment is a detailed list of 

### factors, which are 

### mandatory and are 

### designed as "criteria by which

... [the] likelihood [of reoffense] may be gauged." 

### Commonwealth v. Bey, 841 A.2d 562, 566 

### (Pa.Super.2004); Commonwealth v. Dixon, 

### 907 A.2d 533, 

### 535-36 (Pa.Super.2006). The following 

### factors should be 

### considered: (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. (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.

5(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
(i) 

### assessment field 

### as criteria reasonably related to the 

### risk of reoffense.

42 Pa.C.S.A. § 

### 9795.4(b). 

### Commonwealth v. Askew, 

### 2006 PA 

### Super 239, 907 A.2d 

### 624, 

### 629-30 (2006). When 

### the Commonwealth 

### meets this burden, the trial 

### court then makes the final 

### determination on 

### the 

### defendant's 

### status as an SVP. Here, the 

### first 

### criteria was met. 

### Appellant 

### entered a 

### knowing intelligent 

### and voluntary guilty plea to 

### indecent 

### assault, a 

### tier II 

### sexual offense 

### under 42 Pa.C.S.A. § 

### 9799.14, as evidenced by 

### the extensive colloquy 

### and the signed guilty plea forms. (N.T. 

### 10/13/16/ pg. 5-19) Therefore, following 

### appellant's guilty 

### plea, 

### but before 

### sentencing, the 

### Court was 

### required to 

### order 

### that appellant be 

### assessed by 

### the SOAR to 

### determine if he 

### would be 

### classified as a 

### sexually violent 

### predator 

### pursuant to 42 Pa.C.S.A. § 

### 9799.24(a). See 

### Commonwealth v. Dixon, 

### 907 A.2d 533, 

### 535-36 (Pa.Super.2006)(The triggering event is 

### a conviction for one or 

### more offenses specified in 42 Pa.C.S.A. § [9799.14], which, in 

### turn, prompts the trial 

### court to 

### order an SVP 

### assessment by the SOAB.). The 

### Commonwealth 

### then introduced the SOAB 

### assessment report from Dr. 

### Zakireh into evidence 

### without objection. (N.T. 

### 04/15/16 pg. 8) The Act

6

### requires 

### that the Dr. 

### Zakireh consider the 

### aforementioned factors during the
course of his 

### assessment to 

### highlight the 

### appellant's offense 

### pattern and determine whether 

### appellant suffers from a 

### mental abnormality or 

### personality disorder 

### that makes him likely to engage in 

### predatory sexually violent offenses..
A 

### mental abnormality 

### under the Act 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. § 

### 9799.12. Commonwealth v. 

### Prendes, 2014 PA 

### Super 151, 97 A.3d 

### 337, 

### 355-56 (2014). 

### Predatory 

### conduct is 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. Id. Dr. 

### Zakireh 

### determined, to a 

### reasonable degree of psychological 

### certainty after evaluating the 

### facts of 

### the offense, 

### appellant's prior criminal history, 

### appellant's age, 

### mental health history and 

### other behavioral information, 

### that appellant suffers from a 

### mental abnormality or 

### personality disorder 

### that makes him likely to engage in 

### predatory sexually violent offenses. 

### Pursuant to 

### his 

### assessment, Dr. 

### Zakireh identified a 

### "demonstrated pattern of evolving, 

### repetitive 

### and 

### persistent sexual and non

### -sexual criminal behavior including

severe coercion." He 

### opined 

### that appellant has "significant difficulty in 

### controlling his aggressive 

### sexual urges, impulses, 

### unruly behavior 

### and disregard for social 

### standards/norms, including coercive 

### sexual urges,

7

### impulses and behavior which is 

### related to 

### his 

### disregard and lack of 

### concern for 

### the suffering 

### and 

### distress, or 

### the 

### impact of 

### his 

### actions on the victims 

### and in his 

### historical inability to modify 

### his behavior 

### based on negative 

### consequences or 

### experiences." (See SOAB 

### Assessment pg. 8). 

### Based upon his 

### evaluation of 

### appellant's information available to him, Dr. 

### Zakireh 

### determined 

### that appellant meets the 

### criteria set forth in 

### the Diagnostic 

### and Statistical Manual for Mental 

### Disorders, (DSM-5) for 

### antisocial personality disorder, a 

### category 

### consistent with the legal 

### conception of 

### a 

### personality disorder as defined by the 

### statutes. (See SOAB 

### Assessment pg. 8). Accordingly, 

### the evidence was 

### sufficient for 

### the 

### Court to find 

### that the Commonwealth 

### had met its 

### burden to show by 

### clear and convincing evidence 

### that appellant meets the SVP 

### criteria and this claim fails. 

### Appellant next 

### complains 

### that the SVP finding 

### should be 

### reversed 

### because it is 

### predicated 

### upon the 

### prosecutor's erroneous statement 

### that the SOAB 

### report indicated 

### that appellant exceeded the 

### means necessary to 

### commit the crime. This 

### complaint is 

### meritless. During the SVP 

### hearing, the 

### prosecutor 

### stated 

### that appellant exceeded the [means] 

### necessary to achieve the offense. (N.T. 

### 04/15/16 pg. 10) The 

### written report actually indicated 

### that there was 

### insufficient evidence 

### that appellant exceeded the 

### means necessary to achieve 

### the offense 

### as there was "no evidence of 

### gratuitous violence or 

### significantly beyond the 

### instrumental range." (SOAB 

### Assessment pg. 3) 

### Notwithstanding 

### that it is well 

### settled 

### that the 

### statements of 

### counsel are not evidence, the 

### Court explicitly 

### stated on 

### the record 

### what information was 

### used to 

### make the 

### determination 

### that appellant met the 

### criteria for 

### classification 

### as an SVP; 

### that

8it 

### had thoroughly reviewed 

### the 

### report from Dr. 

### Zakireh where he 

### conducted a 

### thorough evaluation of 

### the facts 

### and history 

### and concluded 

### that based on all of 

### the factors specified in 

### the Act, 

### that to 

### a 

### reasonable degree of 

### psychological 

### certainty 

### appellant meets the criteria set forth for 

### classification 

### as a 

### sexually violent 

### predator. (N.T. 

### 04/15/16 pg. 15-16) 

### Therefore, the SVP 

### finding was 

### based upon the SOAB 

### assessment, not the 

### prosecutor's argument. Consequently, 

### this claim 

### warrants no relief. For 

### the foregoing 

### reasons, appellant's claims on 

### appeal are 

### meritless.

BY THE COURT: 

# Aeta g 

# Orr

SHEILA WOODS -SKIPPER, PJ

9