Com. v. Calcagni, C. (memorandum)

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J-S06014-17 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. CHRISTOPHER CALCAGNI Appellant No. 1797 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-0003287-2014 BEFORE: MOULTON, J., RANSOM, J., and FITZGERALD, J.* MEMORANDUM BY MOULTON, J.: FILED JULY 14, 2017 Christopher Calcagni 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: [Calcagni] has a criminal history as far back as 1991 in which he perpetrated sexual offenses against numerous adolescents/teenage women. In 1991, [Calcagni] plead [sic] guilty to victimizing 5 girls ages 13, 14, 15, and 16. The affidavit of probable cause set forth that all five victims claimed that [Calcagni] had vaginal intercourse with them while they were placed in a juvenile facility known as the Children’s Home of Easton. . . . [Calcagni] was a youth care worker employed with the Children’s Home of Easton at the time of the offenses. [Calcagni] ____________________________________________ * Former Justice specially assigned to the Superior Court. J-S06014-17 entered into a negotiated plea to five (5) counts of corruption of minors, one count for each victim. Apparently, there is no other information in the criminal records regarding the 1991 convictions. In this matter under appeal, [Calcagni] plead [sic] guilty to having vaginal intercourse with a fifteen-year-old girl who was his karate student and the daughter of his friend. The records indicate that there were several separate incidents of intercourse, with [Calcagni] allegedly pressuring the victim by threats of terminating her participation in karate and harming himself should the victim refuse his advances. Pennsylvania Rule of Appellate Procedure 1925(a) Statement, 7/27/16, at 34 (“1925(a) Op.”) (unpaginated). On April 6, 2015, Calcagni entered a negotiated guilty plea to one count each of statutory sexual assault and corruption of minors.1 The trial court deferred sentencing so that an SVP assessment could be performed. On August 14, 2015, the trial court held an SVP hearing. 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 Calcagni. The trial court thoroughly summarized the substance of Dr. Valliere’s testimony in its opinion filed with the May 12, 2016 order classifying Calcagni as an SVP, which we adopt and incorporate herein. See Trial Ct. Op., 5/12/16, at 2-4. On January 8, 2016, the trial court sentenced Calcagni to 18 to 48 months’ incarceration, followed by 2 years’ probation, consistent with the ____________________________________________ 1 18 Pa.C.S. §§ 3122.1(b), 6301(a)(1)(ii). -2- J-S06014-17 parties’ plea agreement. On May 12, 2016, the trial court entered an order classifying Calcagni as an SVP. Calcagni timely appealed to this Court. On June 16, 2016, Calcagni timely filed a Pennsylvania Rule of Appellate Procedure 1925(b) statement. On July 27, 2016, the trial court filed a Rule 1925(a) opinion in which it primarily relied on the reasoning in its prior opinion. Calcagni presents the following issues for our review: 1. Did the trial court err in concluding that the Commonwealth presented sufficient evidence to classify [Calcagni] as an SVP where the Commonwealth’s expert opinion evidence was inadmissible under the standard for expert testimony in Pennsylvania? 2. Did the trial court err in finding that the weight of the evidence established by “clear and convincing” evidence that [Calcagni] should be classified as an SVP? Calcagni’s Br. at 4 (suggested answers omitted).2 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 ____________________________________________ 2 In its Rule 1925(a) opinion, the trial court found that Calcagni’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. Calcagni raised the same two 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 Calcagni’s arguments in its opinions. Therefore, because our review of Calcagni’s issues is not hampered, we decline to find waiver. -3- J-S06014-17 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, Calcagni asserts that the Commonwealth failed to prove by clear and convincing evidence that he has a mental abnormality or personality disorder that makes him likely to re-offend. See Calcagni’s Br. at 13, 23.3 We disagree. First, Calcagni argues that Dr. Valliere’s finding that he suffers from “other specified paraphilic disorder to adolescents” was unsupported because she neither reviewed nor discussed Calcagni’s personal, professional, or criminal history in the 24-year period between his 1991 and 2015 ____________________________________________ 3 Calcagni also appears to challenge the admissibility of Dr. Valliere’s expert report and testimony. See Calcagni’s Br. at 4, 19, 23. However, Calcagni did not object to the admission of Dr. Valliere’s report or testimony at the hearing, so any such challenge is waived. See Baker, 24 A.3d at 1034. -4- J-S06014-17 convictions. As the trial court noted, however, Calcagni expressly “waived the opportunity to participate in the [SVP] assessment and also opted not to testify at any of the assessment hearings, where he could have provided such information.” Trial Ct. Op., 5/12/16, at 9 n.1; 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, Calcagni asserts that “there was no evidence to corroborate Dr. Valliere’s recitation of the facts underlying his 1991 convictions.” Calcagni’s Br. at 10. According to Calcagni, although he was initially charged with more serious offenses, he pled guilty to the lesser charge of corruption of minors because “the alleged victims had provided seriously inaccurate information to the police.” Id. at 24. At the hearing, Dr. Valliere testified that she reviewed the presentence report from Calcagni’s 1991 convictions, which included the allegations of the five adolescent victims. Assessment, 6/16/15, at 1. N.T., 8/14/15, at 9; see SVP Dr. Valliere acknowledged that Calcagni pled guilty only to corruption of minors with respect to those victims, but noted that “[t]he offense pattern was strikingly similar” to the instant case. N.T., 8/14/15, at 12-13. She testified that in both the 1991 and 2015 cases, Calcagni demonstrated “a pattern of arousal to adolescents not only in his -5- J-S06014-17 behaviors, but in his choices of putting himself in a position of authority with adolescents.” Id. at 12. We agree with the trial court that Calcagni’s bald assertion that the victims’ allegations in 1991 were “false” and “unproven” is insufficient to contest the validity of Dr. Valliere’s conclusions. Prendes, 97 A.3d at 360 (“[SORNA] does not limit the See expert’s consideration of information only to that admitted at trial or at the guilty plea proceedings.”). Moreover, despite several continuance requests, Calcagni failed to present any evidence to rebut or impeach Dr. Valliere’s testimony regarding his prior convictions. The trial court explained: At the conclusion of the Commonwealth’s testimony, [defense] counsel requested the opportunity to investigate [Calcagni’s prior] criminal record and to call an expert to rebut Dr. Valliere’s conclusions. We granted counsel’s request and recessed the hearing. Thereafter, with the agreement of the Commonwealth, we granted several additional continuances to allow [Calcagni] to further investigate the factual record and to present testimony from an expert. After many months, [Calcagni] opted not to make any record in contradiction of Dr. Valliere’s findings or present expert testimony to contest Dr. Valliere’s conclusions. 1925(a) Op. at 5; see Prendes, 97 A.3d 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 -6- J-S06014-17 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 Calcagni 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 1-13. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/14/2017 -7- Circulated 06/22/2017 02:21 PM

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