J-A14015-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KENNETH ELWOOD SPRIGGLE,

Appellant No. 1839 MDA 2014

Appeal from the Judgment of Sentence October 15, 2014

In the Court of Common Pleas of Snyder County

Criminal Division at No(s): CP-55-CR-0000055-2014

BEFORE: BENDER, P.J.E., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED JULY 06, 2015

Appellant, Kenneth Elwood Spriggle, appeals from the judgment of 

sentence imposed following his guilty plea to two counts of Rape of a Child, 

18 Pa.C.S. § 3121(c). Specifically, Appellant challenges his classification as 

a Sexually Violent Predator (SVP). After careful review, we affirm. 

Appellant engaged in oral, vaginal, and anal sex on multiple occasions 

with the female victim, beginning when the victim was 9 years old. The 

victim came forward to report the crimes in November of 2013, when she 

was 14 years old. In January 2014, police intercepted a phone call between 

the victim and Appellant, during which the victim mentioned having sex with 

Appellant six times. Appellant neither denied nor refuted the victim’s 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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statements during that phone call. Later, Appellant admitted to 

investigators that he had sex with the victim on multiple occasions. 

Appellant entered a guilty plea to the aforementioned charges on July 

14, 2014.1 Consequently, the trial court ordered an assessment by the 

Sexual Offenders Assessment Board (SOAB) pursuant to 42 Pa.C.S. § 

9799.24 (a) (“After conviction but before sentencing, a court shall order an 

individual convicted of a sexually violent offense to be assessed by the 

board.”). SOAB member C. Townsend Velkoff, M.S., conducted Appellant’s 

assessment in this case and filed his report (hereinafter, “SOAB Report”) 

with the trial court. In that report, Velkoff concluded that Appellant meets

the statutory criteria of an SVP. 

An SVP hearing was conducted on October 15, 2014, where Velkoff 

was the only testifying witness. Following the hearing, the trial court found 

“by clear and convincing evidence that [Appellant] is a[n] [SVP].” Order, 

10/15/14, at 1 (single page); see also N.T., 10/15/14, at 28 (“Based on the 

testimony this morning by Mr. Velkoff, based ... [on] his report, which has 

been admitted in to [sic] evidence, the [c]ourt does find that [Appellant] 

____________________________________________

1 That same day, 29 other charges were dismissed by the trial court. The 

record does not indicate whether the charges were dismissed pursuant to a 

negotiated plea agreement; however, given the timing of the charges’ 

dismissal, we can reasonably assume that they were dismissed on that 

basis. 
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does meet the criteria for a[n] [SVP].”). Appellant was subsequently 

sentenced the same day to an aggregate term of 12-40 years’ incarceration.

Appellant filed a timely notice of appeal on October 31, 2014, and a 

timely, court-ordered Pa.R.A.P. 1925(b) statement on November 21, 2014, 

in which he solely challenged his designation as an SVP. The trial court 

issued its Rule 1925(a) opinion on December 2, 1014, therein incorporating 

its reasoning for the SVP designation from the SVP hearing. 

Appellant now presents the following question for our review: “Did the 

trial court err when it found ... Appellant ... to be a[n] [SVP], pursuant to 42 

Pa.C.S. § 9792, by clear and convincing evidence”? Appellant’s Brief, at 2. 

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 any 

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 determination 

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)).

This Court has explained the SVP determination process as 

follows:

After a person has been convicted of an offense listed in 

[42 Pa.C.S.A. § 9799.14], the trial [court] then orders an 

assessment to be done by the [SOAB] to help determine 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 
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personality disorder that makes the person likely to 

engage in predatory sexually violent offenses. In order to 

show that the offender suffers from a mental abnormality 

or personality disorder, the evidence must show that the 

defendant suffers from a congenital or 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 

persons. Moreover, there must be a showing that the 

defendant's conduct was predatory.... Furthermore, in 

reaching a determination, we must examine the driving 

force behind the commission of these acts, as well as 

looking at the offender's propensity to reoffend, an opinion 

about which the Commonwealth's expert is required to 

opine. However, the risk of re-offending 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 citations 

omitted).

Hollingshead, 111 A.3d at 189-90. 

Finally, 

[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(s); the defendant's 

relationship with the victim(s); the victim(s)' age(s); whether 

the instant offense included a display of unusual cruelty 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 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.A. § 9799.24(b).
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Hollingshead, 111 A.3d at 190. 

The essence of Appellant’s claim is distilled in this portion of his 

argument: 

Of all the testimony presented by Mr. Velkoff, the only issues 

that trended in the direction of ... Appellant being adjudicated [as 

an] SVP were the age of the victim and the fact that ... Appellant 

suffered from bipolar disorder. When pressed on whether these 

were the only dispositive issues for Mr. Velkoff’s opinion, he 

admitted that the vast majority of the factors indicated that the 

Appellant was not a[n] SVP, but that the age of the victim, and 

in particular that she was prepubescent, were of particular 

concern to him. He later admitted that he had no specific 

knowledge as to whether the victim was prepubescent in reality 

or not.

Appellant’s Brief, at 7. 

Appellant’s factual premise is flawed and unsupported by the record. 

Appellant’s bi-polar disorder was not the “mental abnormality or personality 

disorder” that provided the basis for Velkoff’s opinion that Appellant met the 

criteria for an SVP. Velkoff determined that Appellant met the diagnostic 

criteria for pedophilia. N.T., 10/15/14, at 13; see also SOAB Report, at 6 

(“This board member finds that [Appellant] does meet diagnostic criteria for 

Pedophilic Disorder as defined in the DSM5”). 

Additionally, Appellant overlooks at least one factor tending to support 

his designation as an SVP—“the nature of the sexual contact with the 

victim.” Hollingshead, 111 A.3d at 190; 42 Pa.C.S. § 9799.24(b)(1)(iii). In 

relation to this factor, the SOAB Report states:

[Appellant] admitted that he engaged in penile/vaginal sexual 

intercourse and anal intercourse with the victim. [Appellant] 
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acknowledged that he also performed cunnilingus on the victim 

and had the victim perform fellatio on him. [Appellant] indicated 

that this sexual activity occurred between 5 and 10 times over 

the course of the instant offense.

SOAB Report, at 5. Relatedly, the SOAB Report indicates that these sexual 

acts occurred over several years, beginning just before the victim turned 10 

years old, and ending just before she turned 13 years old. Thus, Appellant’s 

assertion that Velkoff’s opinion was based solely on Appellant’s bi-polar 

diagnosis and the age of the victim is simply unfounded.

Appellant also contends that his case is similar to that of 

Commonwealth v. Merolla, 909 A.2d 337 (Pa. Super. 2006). In that case, 

the Commonwealth appealed from the trial court’s determination that 

Merolla was not an SVP. Both the Commonwealth and Merolla presented 

expert witnesses at an SVP hearing, experts who respectively testified that 

Merolla was, and was not, an SVP. The trial court concluded that the 

Commonwealth’s expert’s testimony was not credible. We affirmed the trial 

court, noting that “it is for the court to determine if a defendant is an SVP, 

and a fact-finder is free to believe all, part or none of the evidence 

presented.” Merolla, 909 A.2d at 344.

In the present case, by contrast, the trial court found credible the 

Commonwealth’s expert’s report and related testimony recommending that 

Appellant be designated as an SVP. That evidence demonstrated by clear 

and convincing evidence that Appellant suffered from a mental condition that 

predisposes him to perform criminal sexual acts (Pedophilic Disorder), and 

that his cultivation of a sexual relationship with a pre-teen girl constitutes 
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predatory behavior. Furthermore, Appellant did not present any witnesses 

or evidence to contradict the Commonwealth’s evidence in that regard. 

Thus, Merolla does not support Appellant’s argument(s). Consequently, we 

conclude that Appellant’s claim—that the trial erred when it found him to be 

an SVP—lacks merit. 

Judgement of Sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/6/2015