J-S25024-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

FREDERICK WARREN O'NEAL, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1318 WDA 2021

Appeal from the Judgment of Sentence Entered August 9, 2021

In the Court of Common Pleas of Beaver County Criminal Division at 

No(s): CP-04-CR-0000287-2020

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

MEMORANDUM BY DUBOW, J.: FILED: SEPTEMBER 22, 2022

Appellant, Frederick Warren O’Neal, Jr., appeals from the August 9, 

2021 Judgment of Sentence of 19 to 50 years’ incarceration entered in the 

Beaver County Court of Common Pleas following his jury conviction of 

Aggravated Assault, Rape by Forcible Compulsion, Rape of an Unconscious or 

Unaware Person, Strangulation, Sexual Assault, Simple Assault, and False 

Imprisonment.1 Appellant challenges the sufficiency and weight of the 

evidence, the cumulative prejudice of purportedly erroneous evidentiary 

rulings, and his designation as a sexually violent predator. After careful 

review, we affirm.

The relevant facts as established at trial are as follows. Appellant and 

the victim have been superficially acquainted for almost 20 years. On 

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1 18 Pa.C.S. §§ 2702(a)(1), 3121(a)(1), 3121(a)(3), 2718(a)(1), 3124.1, 

2701(a)(1), and 2903(a), respectively. 
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November 30, 2019, the victim finished her shift at McDonald’s in Beaver Falls 

at nearly 1:00 AM. She left McDonald’s, and walked to the Longhorn Saloon, 

a bar located across the street from her house. At the bar, she saw a former 

co-worker and Appellant, whom she had not planned to meet. The victim 

consumed two vodka cocktails during a 30-minute period, which did not make 

her feel intoxicated or impaired.

When the victim decided to leave the bar, Appellant told her that he 

would take her home. At first, the victim declined Appellant’s offer, but then 

she agreed after Appellant said that it would be unsafe for the victim to walk 

across the street alone because of sex trafficking. The victim waited for 

Appellant to get into his car, a black Dodge Charger with Michigan license 

plates and cracks in the windshield, and then she got into the front passenger 

seat of the car.2

Instead of driving the victim home, however, Appellant drove her to the 

United Methodist Church at Buttermilk Falls. When the victim asked Appellant 

why they were there, he replied “you’ll see.”3 The victim stepped out of the 

car, and Appellant approached her from behind and choked her. With his arm 

around her neck still choking her, the victim blacked out. When the victim 

regained consciousness, she was in the now-reclined passenger seat of the 

car, with Appellant on top of her. Appellant choked the victim to the point of 

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2 The victim later identified Appellant’s car as the same car photographed by 

police and searched as part of their investigation. 

3 N.T. Trial, 3/16/21, at 55.
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unconsciousness four times, removed her clothes and put his penis in her 

mouth. The victim bit Appellant’s penis, causing him to ejaculate. During the 

attack, Appellant told the victim that he had been previously charged with 

rape, but that the charges “didn’t stick.”4 He told the victim that all “drunk 

white bitches” are the same and that when they found her body, she was 

going to look like another “drunk white bitch.”5

Following the attack, Appellant drove the victim home. During the drive, 

the victim told Appellant she planned to report the attack to the police. 

Appellant then apologized and told the victim that he could not go back to jail. 

Once she returned home, the victim called 911. She then went to the hospital 

where she submitted to a sexual assault forensic examination.

When she initially reported this incident to the police, the victim 

indicated that Appellant had picked her up from McDonald’s. In a subsequent 

interview, the victim acknowledged that Appellant had, in fact, left with 

Appellant from the Longhorn Saloon. She explained that she misreported this 

fact because her mother disapproved of her drinking at the Longhorn Saloon. 

The victim also initially indicated that she had seen Appellant at McDonald’s 

earlier in the day, but that she had not interacted with him. 

Prior to the commencement of Appellant’s trial, on February 10, 2021, 

the Commonwealth filed a notice of intent to introduce evidence pursuant to 

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4 Id. at 73-74.

5 Id. at 73.
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Pa.R.Crim.P. 404(b) of Appellant’s statements to the victim in which Appellant 

claimed to have avoided responsibility for a prior sexual assault. On March 8, 

2021, the trial court held a hearing and entered an order finding that the 

proffered evidence was relevant but deferring until trial its ruling on whether 

the unfair prejudice outweighed the relevancy of the evidence. At trial, the 

court determined that the evidence was admissible as its probative value 

outweighed its potential for unfair prejudice.

At trial, the Commonwealth presented the testimony of numerous 

witnesses, including the victim, who testified consistent with the above facts. 

Relevantly, the victim also explained the inconsistencies in her statement 

regarding where she had encountered Appellant on the night in question. In 

a further effort to impeach the victim’s credibility, Appellant’s counsel also 

cross-examined her with respect to whether she had seen or interacted with 

Appellant earlier in the day at McDonald’s. 

In addition to witness testimony, the Commonwealth played for the jury 

the recorded statement Appellant made to police. By way of background, 

prior to trial, the Commonwealth and Appellant had agreed that the 

Commonwealth would redact from his statement all references to Appellant’s 

probation status. Nevertheless, the statement heard by the jury included a 

reference to Appellant’s probation status. Accordingly, Appellant moved for a 

mistrial. The trial court held a hearing on the motion and the Commonwealth 

argued that the court could resolve this matter by issuing a curative 
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instruction. The trial court agreed, denied the motion for a mistrial, and, with 

the consent of Appellant, provided the jury with a curative instruction.

At the close of the Commonwealth’s case, Appellant made an oral 

motion for judgment of acquittal asserting generally that the Commonwealth 

had not presented enough evidence to submit the case to the jury. N.T. Trial 

3/16/21, at 131-32. The trial court denied the motion.

Appellant testified on his own behalf. He conceded that he and the 

victim had had a sexual encounter, but claimed that it was consensual. 

On March 19, 2021, the jury convicted Appellant of the above charges.6 

With respect to the Strangulation charge, the jury found beyond a reasonable 

doubt that Appellant committed that offense in conjunction with sexual 

violence as defined in 42 Pa.C.S. § 62A03. 

On March 22, 2021, the trial court entered an order directing the Sexual 

Offenders Assessment Board (“SOAB”) to assess Appellant to determine 

whether he is a sexually violent predator (“SVP”). The court also directed the 

preparation of a pre-sentence investigation report and scheduled a sentencing 

hearing. On June 28, 2021, the Commonwealth filed a praecipe for a hearing 

to determine Appellant’s SVP status.

On August 9, 2021, the court held a hearing to determine Appellant’s 

SVP status prior to sentencing him. The Commonwealth presented the 

testimony of Julia L. Lindemuth, a member of the of the SOAB, and submitted 

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6 The jury acquitted Appellant of Kidnapping.
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to the court the report she prepared. Relevant to the instant appeal, Ms. 

Lindemuth testified that in preparing such reports, board members typically 

consider, inter alia, allegations of sexual misconduct or assault against 

defendants, even if they do not result in convictions. She further testified that 

Appellant used violence against the victim beyond what was necessary to 

achieve the commission of the crime and his level of violence was related to 

“sadistic sexual interest patterns.”

7

 Following the close of testimony, the court 

found the Commonwealth had met its burden of establishing by clear and 

convincing evidence that Appellant is an SVP.

That same day, the trial court sentenced Appellant to an aggregate term 

of 19- to 50-years’ incarceration, followed by 7 years of probation. 

On August 11, 2021, and September 8, 2021, Appellant filed a postsentence motion and supplemental post-sentence motion. In the motion, 

Appellant asserted that the trial court had erred in denying his motion for 

judgment of acquittal because “the testimony and prior statements of [the 

victim] tend to show her capacity to manufacture narratives from whole cloth, 

to the extent that the jury would have no better hope than to guess as to what 

is actually accurate about what she claimed.” Supplemental Post-Sentence 

Motion, 9/8/21, at 2. Thus, Appellant argued that “[a]ny evidence of the 

necessary mental states of [the victim] or [Appellant] that is solely predicated 

upon the testimony of [the victim] should not be credited toward determining 

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7 N.T. Hr’g, 8/9/21, at 20.
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whether the Commonwealth has met its burden of proof pursuant to 

[Commonwealth v.] Bennett, [303 A.2d 220 (Pa. Super. 1973) (en banc)].” 

Id. at 2-3. 

Appellant also challenged the weight of the evidence, the court’s denial 

of his motion for a mistrial, the admission of the victim’s testimony regarding 

his prior crimes, his designation as an SVP, and requested a reduction in his 

sentence. Following oral argument on the motion, the court entered an order 

modifying Appellant’s sentence by removing the 1-year periods of probation 

it imposed for Appellant’s Strangulation and Aggravated Assault convictions. 

It denied Appellant’s motion in all other respects.

This timely appeal followed. Both Appellant and the trial court have 

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

Appellant raises the following issues for our review:

1. Was it error to deny [Appellant’s] motion for judgment of 

acquittal, based upon the principle set forth in []Bennett, 303 

A.2d 220?

2. Was it error to deny [Appellants’] post-sentence motion for a 

new trial based on a result against the weight of the evidence?

3. Was it error to deny [Appellant] relief based upon the combined 

prejudicial effect of the admission of evidence of his probation 

status in conjunction with the admission of his alleged 

statements regarding supposed prior bad acts?

4. Was it error to maintain [Appellant’s] designation as a sexually 

violent predator when said designation relied, in part, on 

previously acquitted conduct in another case contrary to 

statutory requirement?

Appellant’s Brief at 4.
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Issue 1 – Sufficiency of the Evidence

In his first issue, Appellant challenges the sufficiency of the evidence8in 

support of the charges whose elements the Commonwealth established 

through the victim’s testimony.

9, 10

 Id. at 13-24. 

“A claim challenging the sufficiency of the evidence is a question of law.” 

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “Our standard 

of review is de novo, and our scope of review is plenary.” Commonwealth 

v. Mikitiuk, 213 A.3d 290, 300 (Pa. Super. 2019). When reviewing 

sufficiency challenges, we evaluate the record in the light most favorable to 

the verdict winner, giving the Commonwealth the benefit of all reasonable 

inferences to be drawn from the evidence. Commonwealth v. Trinidad, 96 

A.3d 1031, 1038 (Pa. Super. 2014). This Court will not disturb a verdict when 

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8 Appellant presents this issue as a challenge to the trial court’s denial of his 

motion for judgment of acquittal. We note that “a defendant’s presentation 

of evidence after a demurrer to the evidence waives this issue for appeal 

purposes.” Commonwealth v. Price, 610 A.2d 488, 489 (Pa. Super. 1992) 

(citing Commonwealth v. Ilgenfritz, 353 A.2d 387 (Pa. 1976)). We, 

however, treat this issue as a challenge to the sufficiency of the evidence. Id.

9 These include the following: the “non-consent” element of Rape by Forcible 

Compulsion, Rape of an Unconscious Person, Strangulation, and Sexual 

Assault; the “unconsciousness” element of Rape of an Unconscious Person; 

the “unlawfulness of restraint” element of False Imprisonment; and the 

“existence of or risk of or intention to cause serious bodily injury” element of 

Aggravated Assault. Appellant’s Brief at 13.

10 A claim that a witness’s prior inconsistent statements were too unreliable 

to establish, as a matter of law, a defendant’s guilt beyond a reasonable doubt 

implicates the sufficiency of the evidence. Commonwealth v. Brown, 52 

A.3d 1139, 1157 n.18 (Pa. 2012).
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“there is sufficient evidence to enable the fact-finder to find every element of 

the crime beyond a reasonable doubt.” Commonwealth v. Orr, 38 A.3d 868, 

872 (Pa. Super. 2011) (en banc) (citation omitted). The Commonwealth can 

establish these elements using solely circumstantial evidence. Id.

“[T]he fact finder is free to believe all, part, or none of the evidence

presented.” Commonwealth v. Mobley, 14 A.3d 887, 889-90 (Pa. Super. 

2011) (citation omitted). In making our determination, we do not re-weigh 

the evidence and substitute our judgment for that of the factfinder. Id. at 

890. Challenges to witness credibility pertain to the weight, not sufficiency, 

of the evidence. Commonwealth v. Melvin, 103 A.3d 1, 43 (Pa. Super. 

2014) (citation omitted).

Instantly, Appellant concedes that, if true, the victim’s testimony would 

be sufficient to prove the charges against him. However, relying on Bennett, 

303 A.2d 220, Appellant asserts that the inconsistencies and falsehoods in the 

victim’s testimony pertaining to events preceding the attack, including the 

location at which the victim entered Appellant’s car, “deprived the jury of the 

ability to form anything exceeding a guess concerning whether her account of 

the sexual interaction was accurate, or [Appellant’s] was. Such a guess would 

be insufficient to sustain a verdict in a civil matter, and all the more insufficient 

given the enhanced due process protections that inure to criminal 

defendants.” Appellant’s Brief at 15, 23-24. In other words, Appellant argues 

that the victim’s testimony was so unreliable and contradictory that the jury 

could only speculate about Appellant’s guilt. 
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In Bennett, this Court reversed the defendant’s conviction after 

concluding that the testimony of the witness on whom the Commonwealth 

primarily relied in proving the charges against the defendant was “so 

contradictory on the essential issues that any finding by the jury [was] a mere 

guess[.]” Bennett, 303 A.2d at 221 (citation omitted). Thus, we concluded 

that “when the testimony is so contradictory on the basis issues as to make 

any verdict thereon pure conjecture the jury should not be permitted to 

consider it.” Id. (citation omitted). See also Commonwealth v. 

Farquharson, 354 A.2d 545, 550 (Pa. 1976) (explaining that “[t]he Bennett 

principle is applicable only where the party having the burden of proof 

presents testimony to support that burden which is either so unreliable or 

contradictory as to make any verdict based thereon obviously the result of 

conjecture and not reason.”).

In Commonwealth v. Bibbs, 970 A.2d 440 (Pa. Super. 2009), this 

Court described the co-defendant’s testimony in Bennett that this Court 

found to be insufficient due to its inherent contradictions as: 

several wholly different, conflicting and inconsistent versions of 

when and how he had told the defendant that the car had been in 

fact stolen by him. On a previous occasion the witness had denied 

he had ever conveyed to defendant knowledge of the car’s theft.

With each new version the witness would recant the previous one 

and protest that the newest version was in fact the true one. 

Id. at 446 (citation omitted). Therefore, for testimony to be so inherently 

contradictory, it must display more than just inconsistencies, it must involve 

wholly incompatible stories that the witness claims to be the absolute truth.
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Following our review, we conclude that the record belies Appellant’s 

assertion that the victim’s prior statements and trial testimony pertaining to

the events leading up to the attack were so inconsistent and contradictory as 

to be insufficient to support a finding of guilt. The record reflects that the 

victim initially reported that on the night of the attack she encountered 

Appellant at McDonald’s, when, in fact, she left with him from the Longhorn 

Saloon. She also reported that she had seen Appellant at McDonald’s that 

day, a claim that surveillance recordings did not support. These discrepancies 

are far from the wholly incompatible stories told by the witness in Bennett. 

Furthermore, the victim’s statement and testimony with respect to the assault, 

rape, and strangulation, i.e., that Appellant took her to Buttermilk Park, 

strangled her into unconsciousness multiple times, and raped her, were 

consistent and never contradictory. Moreover, and importantly, the specific 

testimony that Appellant asserts was “inconsistent and false” was not offered 

by the Commonwealth to support its burden of proving the elements of the 

crimes charged. Instead, this testimony merely implicates the victim’s general 

credibility and represented legitimate ground for cross-examination, which 

Appellant’s counsel conducted. In no event was the victim’s testimony on the 

essential facts of the rape so contradictory that the jury should not have been 

permitted to consider it as a matter of law. Appellant’s claim, thus, fails. 

Issue 2 – Weight of the Evidence

In his second issue, Appellant challenges the weight the jury gave to the 

victim’s “thoroughly unreliable” testimony about “basic narrative facts, 
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including where she encountered [Appellant] on the date of the incident in 

question.” Appellant’s Brief at 24-26. He argues that her “testimony was so 

impaired by fundamental unreliability” that Appellant’s guilty verdict “shocks 

one’s sense of justice” and necessitates a new trial. Id. at 24.

When considering challenges to the weight of the evidence, we apply 

the following precepts. “The weight of the evidence is exclusively for the 

finder of fact, who is free to believe all, none[,] or some of the evidence and 

to determine the credibility of the witnesses.” Commonwealth v. Talbert, 

129 A.3d 536, 545 (Pa. Super. 2015) (citation omitted). Resolving 

contradictory testimony and questions of credibility are matters for the finder 

of fact. Commonwealth v. Hopkins, 747 A.2d 910, 917 (Pa. Super. 2000). 

It is well-settled that we cannot substitute our judgment for that of the trier 

of fact. Talbert, 129 A.3d at 546.

Moreover, appellate review of a weight claim is a review of the trial 

court’s exercise of discretion in denying the weight challenge raised in the 

post-sentence motion; this court does not review the underlying question of 

whether the verdict is against the weight of the evidence. Id. at 545-46. 

“Because the trial judge has had the opportunity to hear and see the evidence 

presented, an appellate court will give the gravest consideration to the 

findings and reasons advanced by the trial judge when reviewing a trial court’s 

determination that the verdict is [or is not] against the weight of the 

evidence.” Id. at 546 (citation omitted). “One of the least assailable reasons 

for granting or denying a new trial is the lower court’s conviction that the 
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verdict was or was not against the weight of the evidence and that a new trial 

should be granted in the interest of justice.” Id.

Furthermore, “[i]n order for a defendant to prevail on a challenge to the 

weight of the evidence, the evidence must be so tenuous, vague[,] and 

uncertain that the verdict shocks the conscience of the court.” Id. (internal 

quotation marks and citation omitted). As our Supreme Court has made clear, 

reversal is only appropriate “where the facts and inferences disclose a palpable 

abuse of discretion[.]” Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 

2014) (citations and emphasis omitted). 

“[A] true weight of the evidence challenge concedes that sufficient 

evidence exists to sustain the verdict but questions which evidence is to be 

believed.” Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa. Super. 

2014). For that reason, the trial court need not view the evidence in the light 

most favorable to the verdict winner and may instead use its discretion in 

concluding whether the verdict was against the weight of the evidence. 

Widmer, 744 A.2d at 751 n.3.

Instantly, the jury, who had been made aware of the victim’s prior 

inconsistent statements about the events that preceded the assault, credited 

the victim’s testimony over Appellant’s testimony that their sexual encounter 

was consensual. Appellant essentially asks this Court to reassess the 

credibility of the victim and Appellant, and reweigh the testimony and 

evidence presented at trial. We cannot and will not do so. Our review of the 

record shows that the evidence is not tenuous, vague, or uncertain, and the 
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verdict was not so contrary as to shock the conscious. Accordingly, we discern 

no abuse of discretion in the trial court’s denial of Appellant’s weight claim.

Issue 3 – Admission of Evidence and Cumulative Prejudice

In his third issue, Appellant claims “cumulative prejudicial effect” of the 

presentation to the jury of his recorded statement which inadvertently 

included a reference to his probation status and the victim’s testimony that 

Appellant had told her that he had previously “gotten away with sexual 

assault” necessitates a new trial. Appellant’s Brief at 26-30. He concedes 

that, taken alone, reference to his probation status would not justify a new

trial; but when combined with the court’s admission of the Rule 404(b) 

evidence of prior criminal conduct—which Appellant argues was itself 

inadmissible as the likelihood of unfair prejudice outweighed its probative 

value simply owing to the victim’s purported lack of credibility—entitles him 

to a new trial. Id. at 26-29. Although Appellant acknowledges that the court 

issued an instruction to cure any potential prejudice, he argues, without 

citation to the notes of testimony, that this is insufficient to cure the 

“cumulative effect of multiple admissions of prejudicial evidence[.]” Id. at 

30.

Appellate briefs must materially conform to the requirements of the 

Pennsylvania Rules of Appellate Procedure and this Court may quash or 

dismiss an appeal if the defect in the brief is substantial. Commonwealth v. 

Adams, 882 A.2d 496, 497 (Pa. Super. 2005); Pa.R.A.P. 2101. To properly 

develop an issue for our review, an appellant bears the burden of ensuring 
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that his argument section includes citation to the notes of testimony. See 

Pa.R.A.P. 2119(c) (requiring citation to the record). 

Following our review, we conclude that Appellant has failed to develop 

his argument. Notably, Appellant has failed to cite to the place in the Notes 

of Testimony where the Commonwealth offered the evidence Appellant now 

challenges and where the trial court issued its curative limiting instruction to 

the jury. Moreover, Appellant has not provided this Court with the text of the 

statements and testimony or of the jury instruction so that we may consider 

whether the trial court abused its discretion in admitting the evidence. 

Appellant’s omissions have deprived this Court of the ability to conduct 

meaningful appellate review of this issue. Accordingly, we find it waived. 

Issue 4 – SVP Determination

In his final issue, Appellant asserts that the trial court erred in 

determining that Appellant is an SVP based on the SOAB report that 

improperly considered prior sexual assault allegations against Appellant for 

which he was not convicted. Appellant’s Brief at 30. Appellant baldly asserts 

that “prior criminal allegations that did not result in conviction are outside the 

scope of statutorily permissible factors for the SVP designation” and 

concludes, therefore, that this Court should vacate his SVP designation. Id.

at 32.

A challenge to the trial court’s SVP determination raises a question of 

law; thus, our standard of review is de novo and our scope of review is 

plenary. Commonwealth v. Meals, 912 A.2d 213, 218 (Pa. 2006). A court 
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will determine that an offender is an SVP where the Commonwealth provides

clear and convincing evidence to support the designation. Id. at 219.

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. 

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

this Court has explained, 

[w]hen 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[]; the defendant’s 

relationship with the victim[]; the victim[’s] age[]; whether the 

instant offense included a display of unusual cruelty by the 

defendant during the commission of the offense; the victim[’s] 

mental capacity[]; the defendant’s prior criminal record; whether 

the defendant completed any prior sentence[]; 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. § 

9799.24(b).

Id. at 189-90. 

With respect to the consideration of a defendant’s prior offense history, 

the Judicial Code directs that an SVP assessment shall include, but not be 

limited by, an examination of factors including “(i) [t]he individual’s prior 

criminal record[;] (ii) [w]hether the individual completed any prior 

sentences[; and] (iii) [w]hether the individual participated in available 
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programs for sexual offenders. 42 Pa.C.S. § 9799.24(b)(2)(i-iii). The Judicial 

Code also directs consideration of “[f]actors that are supported in a sexual 

offender assessment field as criteria reasonably related to the risk of 

reoffense.” Id. at § 9799.24(b)(4). 

There is no statutory requirement that all or any particular number of 

the statutory factors 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. See id. at 221. Thus, while the SOAB is to examine 

all the statutory factors, the Commonwealth does not have to show that any 

certain factor is present or absent in a particular case. See id. Rather, the 

question for the trial court is whether the Commonwealth’s evidence, including 

the SOAB’s assessment, shows that the person convicted of a sexually violent 

offense has a mental abnormality or disorder making that person likely to 

engage in predatory sexually violent offenses. Commonwealth v. Feucht, 

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

Instantly, Julia Lindemuth testified at Appellant’s SVP assessment 

hearing that in preparing her assessment report she considered, inter alia,

“the instant offense [and] past predatory sexual behavior including records 

regarding two sexually related cases.” N.T. Hr’g, 8/9/21, at 12-13. Ms. 

Lindemuth acknowledged that, although those cases did not result in 
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conviction with respect to the sexual aspect of the charges, the allegations 

were sexual in nature.11 Id. at 13. She testified that she looks at patterns of 

behavior to determine whether a defendant’s behavior is caused by a mental 

abnormality. Id. at 14. Ms. Lindemuth also considered the evidence 

presented in the instant case and opined that Appellant’s use of violence—

namely choking the victim several times to the point of unconsciousness—

exceeded that which was necessary to achieve commission of the crimes and 

indicated “sadistic sexual interest patterns.” Id. at 20. She further testified 

that she considered all the statutory factors in determining Appellant’s SVP 

status and she reviewed analysis of these factors with the court on the record. 

See id. at 19-36. Ms. Lindemuth concluded that Appellant had a personality 

disorder likely to contribute to his reoffending. Id. at 35.

As a prefatory matter, we observe that Appellant has not cited any 

authority to support his bald claim that prior criminal allegations that did not 

result in conviction are outside the scope of statutorily permissible factors for 

an SVP designation. Furthermore, our review of the record indicates that the 

Commonwealth presented ample evidence, as set forth above, to support the 

trial court’s conclusion that Appellant is an SVP. Accordingly, Appellant is not 

entitled to relief on this claim. 

Judgment of Sentence affirmed.

____________________________________________

11 The allegations included “forced sexual interaction,” and, in particular, a 

“forced sexual encounter that also involved choking and hitting.” N.T. Hr’g, 

8/9/21, at 17-18.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/22/2022