Com. v. Prejean (memorandum)

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J-S69014-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. STEVEN DALE PREJEAN, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 606 MDA 2012 Appeal from the Judgment of Sentence entered on March 13, 2012 in the Court of Common Pleas of Cumberland County, Criminal Division, No(s): CP-21-CR-0001596-2010, CP-21-CR-0002517-2010 BEFORE: MUSMANNO, BENDER and COLVILLE*, JJ. MEMORANDUM BY MUSMANNO, J.: Filed: March 11, 2013 Steven Dale Prejean ( Prejean ) appeals from the judgment of sentence entered following his plea of nolo contendere to one count each of involuntary deviate sexual intercourse, sexual abuse of children and unlawful contact with a minor.1 We affirm. In its Opinion, the trial court summarized the relevant history underlying the instant appeal, which we incorporate herein by reference. See Trial Court Opinion, 6/8/12, at 2-3. Prejean presents the following claims for our review: I. Whether the trial court erred in finding [Prejean] to be a sexually violent predator? II. Whether the trial court erred in denying [Prejean s] Motion for a change of venue or venire? 1 18 Pa.C.S.A. §§ 3123, 6312, 6318. *Retired Senior Judge assigned to the Superior Court. J-S69014-12 Brief for Appellant at 9. Prejean first claims that the trial court erred in finding him to be a sexually violent predator ( SVP ). Id. at 13. In support, Prejean challenges the testimony of Dr. Robert Stein of the Pennsylvania Sexual Offenders Assessment Board. Id. at 14. Prejean first directs our attention to Dr. Stein s testimony that Prejean s commission of the offenses listed at CP-21CR-2517-2010 (wherein Prejean engaged in sexual communications with two teenage girls), taken alone, would not constitute a paraphilia condition[.] Id. Prejean next directs our attention to Dr. Stein s testimony that, when those offenses are considered with the offenses listed at CP-21-CR-15962010 (involving Prejean s sexual conduct with his adoptive daughter), the offenses indicate Prejean s sexual interest in a child or non-consenting person[,] thereby satisfying the criteria for Paraphilia Not Otherwise Specified ( Paraphilia NOS ). allegations specified in Brief for Appellant at 14. CP-21-CR-1596-2010, based Considering the upon Prejean s commission of more than 20 acts of sexual misconduct, Dr. Stein opined that Prejean satisfied the criteria for Paraphilia NOS. Brief for Appellant at 17. To challenge Dr. Stein s testimony, Prejean relies upon the testimony of his own expert, Dr. John M. Hume. Prejean directs our attention to Dr. Hume s testimony that there was no evidence that Prejean suffered from a lifetime condition. Id. Rather, Dr. Hume testified, Prejean suffered from -2- J-S69014-12 hebephilia, a treatable condition. Id. at 16. Prejean also relies on Dr. Hume s testimony that Prejean s conduct began at age 53, and that the onset of Paraphilia NOS diminishes with age. Id. Finally, Prejean argues that the facts in the instant case are similar to those weighed by this Court in Commonwealth v. Plucinski, 868 A.2d 20 (Pa. Super. 2005), in that the Commonwealth failed to show that he suffered from a lifetime condition and was likely to re-offend. Brief for Appellant at 17. Prejean s claim challenges the sufficiency of the evidence underlying his classification as an SVP. In such cases, 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. Meals, 912 A.2d 213, 218 (Pa. 2006). We do not weigh the evidence presented to the sentencing court and do not make credibility determinations. Instead, we view all the evidence and its reasonable inferences in a light most favorable to the Commonwealth. We will disturb an SVP designation only if the Commonwealth did not present clear and convincing evidence to enable the court to find each element required by the SVP statutes. Commonwealth v. Whanger, 30 A.3d 1212, 1215 (Pa. 2011) (quoting Commonwealth v. Feucht, 955 A.2d 377, 382 (Pa. Super. 2008)). -3- J-S69014-12 In its Opinion, the trial court addressed Prejean s claim and concluded that it lacks merit.2 Trial Court Opinion, 6/8/12, at 5-8. We agree with the sound reasoning of the trial court, as set forth in its Opinion, and affirm on this basis.3 See id. In his second claim, Prejean challenges the trial court s denial of his Motion for a change of venue or venire. Brief for Appellant at 18. Prejean argues that four articles from The Patriot News and eight articles from The Sentinel resulted in actual prejudice to him, warranting a change of venue/venire. Id. at 19, 21. Prejean argues that the articles (a) were derived from police reports; (b) referred to his criminal record and pending criminal charges; (c) referred to confessions and admissions by both Prejan and his co-defendant; and (d) mentioned that a wiretap recorded Prejean admitting to sexually abusing a victim. Id. at 21. According to Prejean, the pretrial publicity was so pervasive and extensive as to warrant the change of 2 We note that a citation set forth in the trial court s Opinion has a typographical error. The citation at issue should read Commonwealth v. Dengler, 890 A.2d 372 (Pa. 2005). See Trial Court Opinion, 6/8/12, at 7. 3 In Meals, our Pennsylvania Supreme Court expressly disapproved of this Court s comparative weighing of the assessment factors set forth at 42 Pa.C.S.A. § 9795.4(b), when determining the sufficiency of the evidence underlying an SVP designation. Meals, 912 A.2d at 220; see also 42 Pa.C.S.A. § 9795.4(b) (setting forth the factors to be considered during the SVP assessment). Similarly, in Commonwealth v. Morgan, 16 A.3d 1165 (Pa. Super. 2011), this Court recognized that in Meals, our Supreme Court effectively overruled this Court s decision in Plucinski. Morgan, 16 A.3d at 1173. Accordingly, we conclude that Prejean s reliance upon Plucinski is misplaced. -4- J-S69014-12 venue or venire, as there was not sufficient time for the prejudice to have dissipated. Id. Upon review, we must conclude that Prejean waived his challenges to the venue and venire when he tendered his guilty plea. A plea of guilty constitutes a waiver of all nonjurisdictional defects and defenses. When a defendant pleads guilty, he waives the right to challenge anything but the legality of his sentence and the validity of his plea. Commonwealth v. Jones, 929 A.2d 205, 212 (Pa. 2007) (citation omitted). Even if Prejean had not waived his claim, we would agree with the reasoning set forth in the trial court s Opinion. See Trial Court Opinion, 6/8/12, at 8-10. Judgment of sentence affirmed. -5-

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