J-S50036-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

STEPHEN CARRUTHERS

Appellant No. 1957 MDA 2015

Appeal from the Judgment of Sentence July 28, 2015

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0002107-2013

BEFORE: MUNDY, J., STABILE, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.: FILED JULY 08, 2016

Appellant, Stephen Carruthers, appeals nunc pro tunc from the July 

28, 2015 judgment of sentence of 15 to 20 years’ imprisonment, plus 20 

years’ probation, after being convicted by a jury of a multitude of sex 

offenses which occurred over an eight year period. The trial court also found 

Appellant to be a sexually violent predator (SVP). After careful review, we 

affirm.

The trial court accurately recounted the facts of record, which, upon 

review of the certified record, we adopt in this disposition. See Trial Court 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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Opinion, 1/4/16, at 3-6. Following sentencing, Appellant filed a timely notice 

of appeal on August 21, 2015.1 

On appeal, Appellant presents a single issue for our review.

Did not the Commonwealth fail to prove 

[Appellant’s] status as a “sexually violent predator” 

when the Commonwealth’s expert did not undergo 

an independent risk assessment as to the likelihood 

of re-offense and, instead, concluded in effect that 

all persons who have committed hands-on sexual 

offenses and who are diagnosed with pedophilic 

disorder, ipso facto, are “likely” to reoffend?

Appellant’s Brief at 6.

Preliminary, we recognize the legal authority relevant to our analysis 

as follows.

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 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, 

____________________________________________

1 The appeal was withdrawn and discontinued on October 13, 2015; 

however, Appellant filed a petition for post-conviction collateral relief on 

October 29, 2015, after which the trial court reinstated his direct appeal 

rights nunc pro tunc. We further note that Appellant and the trial court have 

complied with Pennsylvania Rule of Appellate Procedure 1925.
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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).

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 

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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Commonwealth v. Hollingshead, 111 A.3d 186, 189-190 (Pa. Super. 

2015), appeal denied, 125 A.2d 1199 (Pa. 2015).

On appeal, a challenge to a determination of SVP status requires us to 

view the evidence in the light most favorable to the Commonwealth. 

Commonwealth v. Prendes, 97 A.3d 337, 355-356 (Pa. Super. 2014), 

appeal denied, 105 A.3d 736 (Pa. 2014) (citation omitted). We may not 

weigh the evidence or substitute our judgment for that of the trial court, and 

our scope of review is plenary. Id. Further, an expert’s opinion, “rendered 

to a reasonable degree of professional certainty, is itself evidence.” Id. 

(emphasis in original). 

Instantly, Appellant argues that the trial court improperly determined 

that he was an SVP, specifically disputing the determination of the 

Commonwealth’s expert from the Sexual Offenders Assessment Board 

(SOAB) that Appellant was likely to reoffend. In particular, Appellant posits 

as follows.

This appeal will require the Court to ascertain 

the meaning of the term “likely” in the statutory 

definition. The dictionary definition of “likely” is 

“highly probable.” The SOAB employs an approach 

whereby “likely” means simply probable at most.

[Appellant] maintains that the statutory 

definition of “likely” is “highly probable,” and that 

such a statutory conclusion can only be arrived at by 

means of an independent risk assessment.

Appellant’s Brief at 16.
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We reject Appellant’s argument, noting that Appellant fails to cite 

which dictionary he relies upon for his definition of “likely.”2 In addition, 

bearing in mind our standard of review as set forth above, we have reviewed 

both the applicable law and certified record in reaching our conclusion that 

Appellant’s argument is without merit. Notably, the trial court observed that 

“the risk of re-offending is merely a factor to be considered in making an 

SVP determination, and not an independent element.” Trial Court Opinion, 

1/4/16, at 8; accord Stephens, supra at 1039. Upon careful review, we 

conclude the trial court’s thorough and adept January 4, 2016 opinion is 

dispositive in this appeal, such that we adopt it as our own.3 Our adoption 

of the trial court opinion is further supported by our desire to attempt to 

protect the privacy of the victim and the victim’s family. Accordingly, in 

adopting the January 4, 2016 trial court opinion as our own, we have 

redacted the names and initials of the victim and the victim’s family, and 

____________________________________________

2 Appellant’s failure to cite to supporting authority can result in waiver. 

Sackett v. Nationwide Mut. Ins. Co., 4 A.3d 637, 641 (Pa. Super. 2010) 

(finding appellant’s issue waived due to failure to cite legal authority in 

support of claim), appeal denied, 34 A.3d 83 (Pa. 2011); see also Samuel–

Bassett v. Kia Motors Am., Inc., 34 A.3d 1, 29 (Pa. 2011) (holding that a 

party’s failure to develop a claim in any meaningful fashion in its appellate 

brief is a sufficient basis in itself to reject the argument), cert. denied, Kia 

Motors Am., Inc. v. Samuel–Bassett, 133 S. Ct. 51 (2012).

3 We note that the trial court thoughtfully addressed the testimony of both 

experts: the Commonwealth’s expert, Dr. Robert Stein, the SOAB member 

who assessed Appellant; and Appellant’s expert, Dr. Timothy Foley. 
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instruct the trial court and parties to do so in the event of future 

proceedings. We further direct the Prothonotary to seal the record.

Judgment of sentence affirmed. Record sealed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/8/2016