J-S44028-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

ALBERT LEE HESLEY 

 Appellant No. 116 WDA 2014 

Appeal from the Judgment of Sentence February 26, 2010 

In the Court of Common Pleas of Bedford County 

Criminal Division at No(s): CP-05-CR-0000451-2008 

BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.: FILED AUGUST 22, 2014 

 Albert Lee Hesley appeals from the judgment of sentence1

 entered on 

February 26, 2010, in the Court of Common Pleas of Bedford County, made 

final by the denial of his post-sentence motion on April 10, 2010. We affirm. 

The underlying facts of this case are not in dispute. On October 28, 

2009, Hesley pled nolo contendere to one count of rape of a child, following 

disclosure of the fact he had been sexually abusing his paramour’s 

prepubescent son for nearly two years. At a hearing on February 19, 2010, 

Herbert E. Hays, a member of the Pennsylvania Sexual Offenders 

Assessment Board testified that Hesley was a sexually violent predator 

____________________________________________ 

1

 The caption has been amended to reflect that the appeal is from the 

judgment of sentence entered on February 26, 2010, by virtue of the trial 

court’s November 1, 2013 order reinstating Hesley’s appeal rights nunc pro 

tunc. 
J-S44028-14

- 2 - 

(“SVP”). On February 26, 2010, the court sentenced Hesley to 8 to 16 

years’ imprisonment.

Following the imposition of sentence, Hesley filed a motion for 

reconsideration asking the court to reverse the SVP designation. The court 

denied the motion on April 14, 2010. Hesley did not file a direct appeal. 

On September 4, 2010, Hesley filed a pro se PCRA petition 

challenging, among other things, his SVP status. Hesley filed an amended 

PCRA petition with the assistance of court appointed counsel on March 8, 

2011. On July 2011, Hesley’s attorney filed a second amended PCRA 

petition. The court ultimately denied Hesley’s PCRA petition on November 5, 

2012. On June 12, 2013, this Court vacated the order denying PCRA relief 

and remanded with instructions to grant Hesley’s motion to reinstate his 

right to appeal his judgment of sentence nunc pro tunc. Commonwealth v. 

Hesley, No. 1919 WDA 2012, unpublished memorandum at 1-2 (Pa. Super. 

filed June 12, 2013). 

Hesley filed his notice of appeal nunc pro tunc on December 13, 2013. 

On appeal, Hesley challenges the sufficiency of the evidence supporting the 

trial court’s determination that he is an SVP.

“Questions of evidentiary sufficiency present questions of law; thus, 

‘our standard of review is de novo and our scope of review is plenary.’” 

Commonwealth v. Bishop, 936 A.2d 1136, 1141 (Pa. Super. 2007) 

(citations omitted). In reviewing such a claim, we consider the evidence in 
J-S44028-14

- 3 - 

the light most favorable to the Commonwealth, which prevailed upon the 

issue at trial. Id.

An SVP is defined as: 

A person who has been convicted of a sexually violent offense 

set forth in Section 9795.1 (relating to registration) and who is 

determined to be a sexually violent predator under 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. 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. Predatory conduct 

is defined as an act directed at a stranger or at a person with 

whom a relationship has been instituted, established, 

maintained, or promoted, in whole or in part, in order to 

facilitate or support victimization. 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 re-offend, 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.”

At the SVP hearing, the Commonwealth has the burden of 

proving by clear and convincing evidence that the person meets 

the criteria to be designated as an SVP. This burden of proof 

has been described as an intermediate test, falling below the 

highest level of proof, beyond a reasonable doubt, but above the 

preponderance of the evidence standard. Evidence will meet this 

level of proof if it is so clear, direct, weighty, and convincing as 

to enable the [trier of fact] to come to a clear conviction, without 

hesitancy, of the truth of the precise facts at issue. 

Commonwealth v. Stephens, 74 A.3d 1034, 1038-39 (Pa. Super. 2013) 

(citations and quotations omitted). 
J-S44028-14

- 4 - 

Hesley’s SVP hearing occured on February 19, 2010, before the 

Honorable Daniel L. Hosware. The court accepted the Commonwealth’s 

witness, Hays, as an expert in the field of assessment, treatment, and 

management of sexual offenders. In preparation of his report, Hays 

reviewed the following information: affidavit of probable cause; police 

reports, including statements given by Hesley; interview of the victim; 

information from the Mifflin County case,2

 including a custodial statement 

made by Hesley; and an interview of Hesley conducted by Hays. Based on 

his review of the matter, Hays determined that: 

1. There was only one victim in the case, a child who would 

have been between the ages of nine and 10 at the time of 

his victimization. [Hesley] was between the ages of 38 

and 39; 

2. [Hesley] did not exceed the means necessary to 

accomplish the offense; 

3. [Hesley] met the child through his involvement with the 

child’s mother;

4. [Hesley] engaged the child in oral and anal intercourse, 

masturbation, and fondling; 

5. [Hesley] has no prior record, the offenses did not involve 

sadistic behavior or unusual cruelty; 

6. The child had no mental infirmities; 

____________________________________________ 

2

 Hesley lived in Mifflin County from March 31, 2007 to August, 2008 with 

the victim and the victim’s mother. The sexual abuse was ongoing during 

this time. Accordingly, charges were brought against Hesley in Mifflin 

County for child sexual assault. Hesley also pled nolo contendere to one 

count of rape of a child in that case. 
J-S44028-14

- 5 - 

7. There was no evidence of drug use by [Hesley] or that he 

suffered from mental disabilities; 

8. In his interview with Hays, [Hesley] would at times admit 

he had offended the child, and at times denied it; 

9. [Hesley] had to have initiated the conduct with the child, 

trained and groomed the child in these behaviors as in 

[Hays’] opinion, a child of this age would have no 

inclination naturally to perform these acts; 

10. The offenses occurred over a two year time period; 

11. As during this time, [Hesley] maintained his relationship 

with the victim’s mother, [Hesley] had to engage in 

planning to prevent discovery by the child’s mother;

12. Hays found [Hesley] suffered from a mental abnormality, 

pedophilia; 

13. Based on this conduct in grooming and training the child

and his efforts to avoid discovery, [Hays] stated that as

[Hesley] initiated, continued, and maintained the 

exploitation [Hesley] was a predator. 

Trial Court Opinion, 11/5/12, at 2-4.

Hesley’s challenge to the sufficiency of the evidence supporting his 

SVP designation is twofold. First, Hesley claims that Hays failed to address 

his likelihood to reoffend. We reiterate that the risk of reoffending is but one 

factor the court should consider when making an assessment; it is not an 

“independent element.” Commonwealth v. Morgan, 16 A.3d 1165, 1170-

72 (Pa. Super. 2011) (citations omitted). Additionally, Hays clearly states in 

his report that Hesley “meets the DSM-IV-TR[3]

 criteria for Pedophilia, a 

____________________________________________ 

3

 The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, 

Text Revision, published by the American Psychiatric Association, is a 

manual used to make psychiatric diagnoses. 
J-S44028-14

- 6 - 

mental abnormality that makes him likely to reoffend. Pedophilia has no 

known cure.” SVP Assessment Report, 1/14/10, at 6. Accordingly, Hesley’s 

claim is meritless. 

Hesley also argues that the trial court erred in concluding his behavior 

was predatory. We note that section 9792 defines predatory behavior as “an 

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.” 42 Pa.C.S. § 9792. Hesley argues 

that he initiated his relationship with the victim as “part and parcel” of his 

relationship with the victim’s mother, not for the purpose of victimization 

and he is therefore not a predator. Hesley’s argument is misguided. The 

moment Hesley engaged in sexual conduct with the child, he abrogated his 

custodial role. For nearly two years, Hesley promoted and maintained a 

sexual relationship with the victim; one he would have had to work at to 

maintain, considering its secretive nature. While Hesley may not have 

initiated his relationship with the victim to facilitate or support victimization, 

he certainly promoted and maintained it for that reason. 

 When viewed in the light most favorable to the Commonwealth, the 

facts of Hesley’s crimes, combined with Hays’ diagnosis of Pedophilia, 

provide clear and convincing evidence that Hesley suffers from a mental 

abnormality that makes him likely to engage in predatory, sexually violent 

offenses. Stephens, supra. Therefore, the evidence was sufficient for the 
J-S44028-14

- 7 - 

trial court to designate Hesley an SVP. Accordingly, Hesley’s claim has no 

merit and we cannot offer him relief. 

Judgment of sentence affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/22/2014