Com. v. Hall, M. (memorandum)

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J-S06013-17 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. MICHAEL G. HALL Appellant No. 1793 EDA 2016 Appeal from the Order May 12, 2016 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0002103-2014 BEFORE: MOULTON, J., RANSOM, J., and FITZGERALD, J.* MEMORANDUM BY MOULTON, J.: FILED JULY 14, 2017 Michael G. Hall appeals from the May 12, 2016 order entered in the Northampton County Court of Common Pleas classifying him as a sexually violent predator (“SVP”) under the Sex Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S. §§ 9799.10-9799.41. We affirm. The trial court set forth the facts of this case as follows: [O]n October 14, 2013, the victim reported the sexual abuse to police. . . . [T]he victim disclosed to her stepmother that she had been sexually assaulted by [Hall] from the time she was ten (10) years old, commenting that “‘I haven’t been a virgin since fourth grade.’” When interviewed about the sexual assault, the victim reported to . . . living with her biological father . . . Michael Hall, since she was two (2) years old, and the abuse started at the age of ten. Initially, [Hall] would just touch the victim under her bra, which later progressed to “touching her vagina and genitals and digitally penetrating her vagina.” ____________________________________________ * Former Justice specially assigned to the Superior Court. J-S06013-17 Over the next year, [Hall] began “penetrating her with a dildo and a vibrator that her mother kept in a drawer by the bed” and showing her adult pornography. [Hall] began to penetrate the victim’s vagina with his penis, and “he never used a condom and would withdraw and ejaculate into a towel he had on the bed.” Additionally, [Hall] “orally assaulted her, licking her [“]vagina and boobs with his tongue.” Further, the victim reported that “[Hall] made her suck his penis and forced her to swallow the ejaculate . . . he would masturbate in front of her and have her masturbate his penis to ejaculation . . . [Hall] would make her use the vibrator in front of him and would masturbate watching her.” [Hall] also gave the victim marijuana to try once. According to the victim, the assaults happened “‘almost every time they were alone.’” [Hall] was “described as ‘nasty’ to her, saying she was worthless, and one time smacking her in the face.” He would tell her, “‘if anything happened, you will go to foster care’ . . . [h]e added that he would ‘get her out of trouble if she needed as long as she went along’ with the abuse.” The victim disclosed the sexual abuse “because she couldn’t take it anymore.” Detectives interviewed two of the victim’s ex-boyfriends, who both stated that the victim disclosed to them about being sexual[ly] abused by [Hall]. At the Preliminary Hearing, the victim testified that the abuse started “‘barely at first, but then increased to a lot’ … that by her age of 11, the assaults were occurring once or twice a week up to 2 or 3 times a week until it ended.” Additionally, the victim testified that she “‘told him I didn’t want to do it anymore,’ which would cause [Hall] to become mean and ask for it, then she ‘just went along with it so he would treat her nicer.’” Pennsylvania Rule of Appellate Procedure 1925(a) Statement, 8/5/16, at 3-5 (“1925(a) Op.”) (internal citations omitted; some alterations in original). On June 11, 2015, Hall entered a plea of nolo contendere to corruption of minors, 18 Pa.C.S. § 6301(a)(1)(ii). On that same date, the trial court -2- J-S06013-17 sentenced Hall to 1½ to 3 years’ incarceration, followed by 4 years’ probation, consistent with the plea agreement. Based on his corruption of minors conviction, Hall was classified as a Tier I offender under SORNA, which required him to register as a sex offender for 15 years. The trial court further ordered that an SVP assessment be performed. The trial court held an SVP hearing on November 25, 2015. At the hearing, Veronique N. Valliere, Psy.D., a clinical psychologist and member of the Sexual Offenders Assessment Board (“SOAB”), testified regarding her assessment of Hall. The trial court thoroughly summarized the substance of Dr. Valliere’s testimony in its opinion filed with the May 12, 2016 order classifying Hall as an SVP, which we adopt and incorporate herein. See Trial Ct. Op., 5/12/16, at 2-5. On June 6, 2016, Hall timely appealed to this Court. Hall raises the following issues on appeal: 1. Did the trial court err in concluding that the Commonwealth met its burden of proof concerning Michael Hall’s qualification as an SVP where the Commonwealth’s expert opinion evidence was inadmissible under the applicable standard? 2. Did the trial court err in finding that the weight of the evidence established by “clear and convincing” evidence that Michael Hall should be classified as an SVP? Hall’s Br. at 4 (suggested answers omitted).1 ____________________________________________ 1 In its Rule 1925(a) opinion, the trial court found that Hall’s Rule 1925(b) statement was vague and suggested that his claims should be deemed waived on that basis. 1925(a) Op. at 1-2. Hall raised the same two (Footnote Continued Next Page) -3- J-S06013-17 A challenge to a trial court’s SVP determination is a challenge to the sufficiency of the evidence, for which our standard of review is de novo and our scope of review is plenary. Commonwealth v. Meals, 912 A.2d 213, 218 (Pa. 2006). When reviewing a trial court’s SVP determination, we must view the evidence in the light most favorable to the Commonwealth and may not re-weigh the evidence or substitute our judgment for that of the trial court. Commonwealth v. Prendes, 97 A.3d 337, 355 (Pa.Super. 2014). The question for the trial court is whether the Commonwealth’s evidence establishes that the defendant has a mental abnormality or personality disorder that makes him or her likely to engage in predatory sexually violent offenses. Commonwealth v. Brooks, 7 A.3d 852, 863 (Pa.Super. 2010); see 42 Pa.C.S. § 9799.12. We will reverse an SVP determination only if the Commonwealth did not present “clear and convincing evidence that each element of the statute has been satisfied.” Commonwealth v. Baker, 24 A.3d 1006, 1033 (Pa.Super. 2011), aff’d, 78 A.3d 1044 (Pa. 2013). On appeal, Hall asserts that the Commonwealth failed to prove by clear and convincing evidence that he has a mental abnormality or (Footnote Continued) _______________________ issues in his Rule 1925(b) statement that he raises in the statement of questions involved in his appellate brief, and the trial court addressed each of Hall’s arguments in its opinions. Therefore, because our review of Hall’s issues is not hampered, we decline to find waiver. -4- J-S06013-17 personality disorder that makes him likely to re-offend. See Hall’s Br. at 13, 16.2 We disagree. First, Hall challenges the fact that Dr. Valliere did not interview him prior to reaching her conclusions. As the trial court observed, however, Hall “was given the opportunity to submit to an interview with the evaluator and refused to do so. He cannot now claim that the evaluation is somehow defective or objectionable because [Hall] refused to be interviewed.” 1925(a) Op. at 3; see Prendes, 97 A.3d at 359 (“[T]he absence of an interview does not preclude the ability to evaluate the offender’s behavior through available history for characteristics similar or dissimilar to the criteria set forth in the law for defining [an SVP].”) (quoting Commonwealth v. Woods, 909 A.2d 372, 381 (Pa.Super. 2006)). Second, Hall asserts that Dr. Valliere improperly considered the “unproven” allegations of sexual abuse included in his criminal record with regard to the instant offense, including the affidavit of probable cause and the police report, because Hall only pled nolo contendere to corruption of minors. Contrary to Hall’s assertion, however, Dr. Valliere was permitted to ____________________________________________ 2 Hall also appears to contest the admissibility of Dr. Valliere’s expert report and testimony. See Hall’s Br. at 4, 21. At the hearing, Hall’s counsel initially objected to Dr. Valliere’s written report, N.T., 11/25/15, at 11, but later withdrew the objection, id. at 28. Hall also did not raise any objection to Dr. Valliere’s testimony. Therefore, Hall has waived any purported challenge to the admission of Dr. Valliere’s report and testimony. See Baker, 24 A.3d at 1034. -5- J-S06013-17 rely on Hall’s entire criminal file in forming her opinion. See Prendes, 97 A.3d at 360 (“[SORNA] does not limit the expert’s consideration of information only to that admitted at trial or at the guilty plea proceedings.”) Moreover, despite several continuance requests, Hall failed to present any evidence to rebut or impeach Dr. Valliere’s testimony. See id. at 358 (“Once expert testimony has been admitted, the rules of evidence then place the full burden of exploration of facts and assumptions underlying the testimony of an expert witness squarely on the shoulders of opposing counsel[],” who “bears the burden of exposing and exploring “‘any weaknesses in the underpinnings of the expert’s opinion.’”) (quoting In re D.Y., 34 A.3d 177, 183 (Pa.Super. 2011)). Based on our de novo review of the certified record, the parties’ briefs, and the relevant law, and viewing the evidence in the light most favorable to the Commonwealth, we conclude that the trial court correctly determined that Hall is an SVP under SORNA. We reach this conclusion for the reasons stated in the trial court’s May 12, 2016 opinion, which we adopt and incorporate herein. See Trial Ct. Op., 5/12/16, at 1-12. Order affirmed. -6- J-S06013-17 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/14/2017 -7- Circulated 06/22/2017 02:25 PM

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