Commonwealth v. Davey

1

COMMONWEALTH OF PENNSYLVANIA v. ALLEN LEE DAVEY Appellant

No. 1834 EDA 2022

No. J-S03021-23

Superior Court of Pennsylvania

May 31, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered June 17, 2022 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0001257-2019

Joseph D. Seletyn, Esq.

BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.

MEMORANDUM

McCAFFERY, J.

Allen Lee Davey (Appellant) appeals from the judgment of sentence entered in the Monroe County Court of Common Pleas, following his guilty plea to involuntary deviate sexual intercourse with a child^[1] (IDSI). Appellant challenges his designation as a sexually violent predator (SVP) under Subchapter H of the Pennsylvania Sex Offender Registration and Notification Act^[2] (SORNA II). He argues: (1) the evidence was insufficient to support an SVP finding, because the Commonwealth's expert relied on "junk science;" and (2) pursuant to Commonwealth v. Torsilieri, 232 A.3d 567 (Pa. 2020) lifetime registration under SORNA II is unconstitutional because "it permanently brands a person an SVP for life and thus[ ] denies [them] 'inherent and indefeasible rights' of acquiring and possession [sic] of property and reputation." See Appellant's Brief at 4, 6. We affirm.

I. Facts & Procedural History

In March of 2019, R.C., then 15 years old, reported that her stepfather, Appellant, had been sexually assaulting her since she was six years old. Affidavit of Probable Cause, Police Criminal Complaint, 4/30/19, at 1. Appellant was charged with numerous offenses.

On September 24, 2021, Appellant entered a guilty plea to one count of IDSI. The written plea colloquy stated the factual basis for the offense as follows:^[3]

Between August 8, 2011 and August 8, 2016,^[4] in the County of Monroe, Stroud Township, [Appellant] engaged in deviate sexual intercourse with a complainant who was less than 13 years of age, to wit: R.C.

Guilty Plea Colloquy & Plea, 9/24/21, at 1. The trial court directed that the Sexual Offender Assessment Board (SOAB) conduct an evaluation as to whether Appellant satisfied the criteria to be an SVP.

On June 17, 2022, the trial court conducted a combined SVP and sentencing hearing. First, the Commonwealth presented the testimony of SOAB member Mary Muscari, Ph.D. Relevant to Appellant's arguments on appeal, she stated she has a master's degree in criminology and a doctoral degree in psychiatric nursing, but not any degrees in psychiatry or psychology. N.T. at 9, 12. Nevertheless, Appellant did not object to her qualification as an expert. Id. at 15. Dr. Muscari reviewed in detail each of the 15 statutory factors for an SVP determination, as well as the detailed facts of this case. Id. at 22-31. See 42 Pa.C.S. § 9799.24(b)(1)-(4). She opined Appellant met the criteria for having a pedophilia disorder, pursuant to the "DSM-5," which "is a diagnostic and statistical manual . . . developed by the American Psychiatric Association . . . for making psychiatric diagnoses." N.T. at 30, 32-33. Dr. Muscari further described the DSM-5 as "a compilation of opinions and research by . . . experts," and it is "considered as an evidence-based manual" and is "well accepted." Id. at 33. Finally, Dr. Muscari opined Appellant was likely to reoffend and met the criteria to be an SVP. Id. at 36, 38.

Next, Appellant presented an expert witness, Dean Dickson, a licensed psychologist and former member of the SOAB. See N.T. at 54-55. He opined the methodology of an SVP assessment, including the 15 statutory factors, are not scientific and "really not psychological, where, for] example, there is no term in the DSM for sexual predators." N.T. at 61, 62. See also id. at 62 ("[W]hat we have in these reports is a lack of science."). Mr. Dickson further opined Dr. Muscari should have considered "actuarial data, appropriate research, and a description of [Appellant's] behavior outside the affidavit of probable cause." Id. at 73.

Nevertheless, Mr. Dickson agreed that Appellant met "the diagnostic criteria for pedophilia." N.T. at 67. However, he pointed out that Dr. Muscari did not "discuss what kind of pedophile he is," nor how various classifications of pedophiles "differ in re-offense potential." Id. at 66-67. With respect to sex offender recidivism generally, Mr. Dickson testified "the science [has] changed," and now there is "a voluminous amount of research that showed . . . sex offenders recidivate at a very low rate," but the current SORNA II statutes are based on the former "false data." Id. at 69, 70. At this juncture, the Commonwealth objected that Mr. Dickson was addressing policy and other issues not relevant to the inquiry of whether Appellant met the criteria for an SVP. Id. at 70. The trial court agreed, reasoning it must consider Appellant's individual assessment only, and "not whether the statute is . . . good or . . . bad," nor whether the legislature considered the right factors. Id. at 71. Mr. Dickson then testified he utilized "the Static-99, which is an instrument . . . universally used to assess sex offender risk and recidivism," and determined Appellant had "a score of minus one" and was not likely to reoffend. Id. at 64, 66.

Finally, Mr. Dickson opined that under the methodology he applied, Appellant did not meet the criteria of an SVP. N.T. at 74. On cross- examination, however, he acknowledged that while he objected to "the format [of the statute] and the lack of looking at the science that [the field has] accumulated," the SVP criteria was prescribed by statute. Id. at 75. Mr. Dickson affirmed that he believed Appellant met the criteria for pedophilia, and further agreed that based on the legal, statutory definition of an SVP, Appellant met the criteria for having predatory behavior. Id. at 76-77.

The trial court found, based on the "uncontradicted" opinions of both parties' experts, that Appellant met the statutory criteria for an SVP. N.T. At 78. The court thus declared Appellant was subject to lifetime registration as "set forth in 42 Pa.C.S. [§] 9799.23,"^[5] and additionally was a "Tier 3 offender."^[6] Id. at 95. The court proceeded immediately to sentencing and imposed a term of 15 to 40 years' imprisonment. Id. at 78, 94.

Appellant filed a timely post-sentence motion, which was denied. He then took this timely appeal and complied with the trial court's order to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.

II. Questions Presented

Appellant presents the following issues for our review:

[1.] Whether there was sufficient evidence presented at the "SVP" hearing to determine that [A]ppellant is a sexually violent predator.

[2.] Whether the sentencing court abused its discretion by holding that [A]ppellant is a sexually violent predator on a standard of proof less than clear and convincing evidence. . . .

[3.] Whether lifetime registration under [SORNA II] violates Pa. Const., Art. I, § 1 . . . in that it permanently brands a person an SVP for life, and thus, denies a citizen of our Commonwealth "inherent and indefeasible rights" of acquiring and possession of property and reputation.

[4.] Whether the failure of the . . . SOAB to consider scientific evidence relative to their findings that a person is a sexually violent predator is a violation of U.S. Constitution's due process clause under the Fourteenth Amendment[.]

Appellant's Brief at 4.

III. Standard of Review & Relevant Principles

We first set forth the relevant principles governing our review.

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) (citation omitted).

This Court has stated:

It is well-settled that an SVP order is a non-punitive collateral consequence of the criminal sentence. "[T]he imposition of SVP status is a component of the judgment of sentence even though the ultimate collateral consequences are non-punitive."

Commonwealth v. Woeber, 174 A.3d 1096, 1105 (Pa. Super. 2017) (citation & emphasis omitted).

Furthermore, we note:

[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, 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. . . .

Hollingshead, 111 A.3d at 189-90 (citation omitted & paragraph break added).

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

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