Com. v. McCutcheon (memorandum)

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J-S03034-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. KENNETH F. McCUTCHEON, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1113 WDA 2012 Appeal from the Judgment of Sentence entered on June 25, 2012 in the Court of Common Pleas of Mercer County, Criminal Division, No. CP-43-CR-0001680-2010 BEFORE: BENDER, ALLEN and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: Filed: April 29, 2013 Kenneth F. McCutcheon ( McCutcheon ) appeals from the judgment of sentence entered following his conviction of indecent assault.1 Specifically, McCutcheon challenges his designation as a sexually violent predator pursuant to 42 Pa.C.S.A. § 9795.4. We affirm. On September 3, 2010, McCutcheon (then 47 years old) exposed his penis to the twenty-year-old victim2 and asked that the victim touch it. The victim attempted to leave, at which time McCutcheon yelled at the victim to touch his penis. As the victim again tried to walk away, McCutcheon masturbated and ejaculated in front of the victim. 1 2 18 Pa.C.S.A. § 3126. The Commonwealth presented testimony that the victim had diminished developmental abilities. N.T. (Sentencing), 6/25/12, at 7. J-S03034-13 McCutcheon pled guilty to the above-mentioned charge. The trial court subsequently conducted a Megan s Law hearing, after which it designated McCutcheon as a sexually violent predator ( SVP ). Following the Megan s Law hearing, the trial court sentenced McCutcheon to 18-60 months in prison. Thereafter, McCutcheon filed the instant timely appeal, followed by a court-ordered Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement of matters complained of on appeal. McCutcheon presents the following claim for our review: Did the trial court err in finding [McCutcheon] to be a[n SVP] where the evidence presented at the Megan s Law Hearing was insufficient to support said finding[?] Brief for Appellant at 4. McCutcheon challenges his designation as an SVP. Id. at 8. Specifically, McCutcheon claims that the Commonwealth failed to prove, by clear and convincing evidence, that he met the criteria for such a designation. Id. at 12; see 42 Pa.C.S.A. § 9795.4 (setting forth factors for consideration in conducting an SVP assessment ). In particular, McCutcheon states that Brenda Manno ( Manno ), who conducted the assessment, found that McCutcheon did not exceed the force necessary to achieve the offense. Brief for Appellant at 10. Further, McCutcheon directs our attention to evidence that he had not created an environment where he could sexually attack the victim; that the sexual contact was minor; that the Commonwealth presented no specific evidence as to the victim s mental age; -2- J-S03034-13 and that he had no relevant criminal conduct in the 22 years preceding the incident. Id. at 11-12. Our standard of review is as follows: The determination of a defendant s SVP status may only be made following an assessment by the [Sexual Offenders Assessment Board ( SOAB )] and hearing before the trial court. 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 the 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. The standard of proof governing the determination of SVP status, i.e., clear and convincing evidence, has been described as an intermediate test, which is more exacting than a preponderance of the evidence test, but less exacting than proof beyond a reasonable doubt. *** The clear and convincing standard requires evidence that 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 [in] issue. Commonwealth v. Morgan, 16 A.3d 1165, 1168 (Pa. Super. 2011) (quoting Commonwealth v. Fuentes, 991 A.2d 935, 941-42 (Pa. Super. 2012 (en banc) (citations omitted)). In its Opinion, the trial court addressed McCutcheon s claim and concluded that it lacks merit. Trial Court Opinion, 9/11/12, at 2-9. Upon our review of the parties briefs and the certified record, we agree with the -3- J-S03034-13 sound reasoning of the trial court, as set forth in its Opinion, and affirm on that basis. Judgment of sentence affirmed. -4-

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