Opinion
J-S17024-14 No. 1624 MDA 2013
03-21-2014
COMMONWEALTH OF PENNSYLVANIA, Appellee v. MICHAEL GRIFFITH, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence entered June 20, 2013,
in the Court of Common Pleas of Berks County,
Criminal Division, at No(s): CP-06-CR-0003431-2012
BEFORE: GANTMAN, P.J., ALLEN, and LAZARUS, JJ. MEMORANDUM BY ALLEN, J.:
Michael Griffith ("Appellant") appeals from the judgment of sentence imposed after he pled guilty to two counts of involuntary deviate sexual intercourse ("IDSI"). Appellant challenges the trial court's determination that Appellant is a sexually violent predator ("SVP") for purposes of Megan's Law, 42 Pa.C.S.A. § 9799.10 et seq. We affirm.
The pertinent facts and procedural history is as follows: On January 5, 2012, detectives at the Berks County Child Abuse Unit received a report that Appellant had sexually abused his step-daughter between January 2001 and January 2010, when the victim was between 9 and 18 years of age, and that the abuse had occurred almost every day during this 9-year period. Affidavit of Probable Cause, 6/21/12; N.T., 1/16/13, at 5-7. Appellant was subsequently arrested and charged with numerous offenses. On January 8, 2013, Appellant pled guilty to two counts of involuntary deviate sexual intercourse. After the completion of a presentencing report and Megan's Law assessment, the trial court, on June 20, 2013, held a hearing to impose sentence and determine whether Appellant was an SVP under Megan's Law. Following the hearing, the trial court found Appellant to be an SVP and sentenced him to a term of ten to twenty years of incarceration. Appellant filed a timely post-sentence motion, which the trial court denied. This appeal followed. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant raises the following issue for our review:
A. Whether the [trial court] abused its discretion in denying [Appellant's] Motion that the Order classifying him as a Sexually Violent Predator was contrary to the weight of the evidence, which included the opinions of two equally qualified experts who opined to a reasonable degree of professional certainty to contradictory conclusions regarding whether [Appellant] was a Sexually Violent Predator?Appellant's Brief at 5.
Appellant argues that the trial court's decision to classify him as an SVP was against the weight of the evidence, and asks this Court to vacate the judgment of sentence as to his SVP classification.
"The standard of proof governing the determination of SVP status, [is] 'clear and convincing evidence,' [which] 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. Meals, 912 A.2d 213, 219 (Pa. 2006) (citations omitted). "The task of the Superior Court is one of review, and not of weighing and assessing evidence in the first instance." Id. at 223. "Our standard of review of a weight of the evidence claim is for an abuse of discretion. [A]ppellate review is limited to whether the trial judge's discretion was properly exercised, and relief will only be granted where the facts and inferences of record disclose a palpable abuse of discretion. Indeed, it is oft-stated that the trial court's denial of a motion for a new trial based on a weight of the evidence claim is the least assailable of its rulings." Commonwealth v. Ratushny, 17 A.3d 1269, 1272 (Pa. Super. 2011) (citations an internal quotation omitted). This standard of review with regard to weight claims is the same whether the challenge is to the weight of the evidence to support a guilty verdict or a trial court's SVP determination. Id. "[I]t is not the function of the appellate court to substitute its judgment based on a cold record for that of the trial court. The weight to be accorded conflicting evidence is exclusively for the fact finder, whose findings will not be disturbed on appeal if they are supported by the record." Id. "[W]hen expert opinion evidence is admitted, the factfinder is free to reject it, accept it, or give it some weight between the two." Commonwealth v. Stephens, 74 A.3d 1034, 1041 (Pa. Super. 2013).
Here, at the SVP hearing, the Commonwealth presented the expert testimony of Dr. Veronique Valliere. Dr. Valliere testified that in her opinion, Appellant's behavior met the definition required for designation as a sexually violent predator with a predisposition to the commission of criminal sexual acts, to the extent that Appellant is a menace to the health and safety of others, and with a likelihood of reoffending. N.T., 6/20/13, at 10-31. Appellant presented the expert testimony of Dr. Timothy P. Foley, who testified that Appellant met the criteria for designation as a sexually violent predator, but who opined that Appellant was not likely to reoffend. Id. at 32-50.
"As a general matter, once an expert is qualified to testify, the weight to be given his testimony is a matter for the [finder of fact]." Commonwealth v. Harris, 817 A.2d 1033, 1054 (Pa. 2002). The trial court in this instance found credible and persuasive the testimony of Dr. Valliere that Appellant was "predisposed to commission of criminal sexual acts" and that Appellant "is likely to re-offend." Trial Court Opinion, 10/12/13, at 5-6. Such credibility determinations are within the purview of the trial court as fact finder, who is free to reject or accept the testimony of expert witnesses, and we will not reweigh such credibility assessments on appeal. See Commonwealth v. Hicks, 396 A.2d 1183, 1185 (Pa. 1979) ("(p)sychiatric testimony, like any other evidence, is for the trier of fact to consider and to determine what weight it should be given"). While Appellant argues that the trial court improperly considered only the testimony of the Commonwealth's witness and disregarded the testimony of Appellant's witness, the record reflects that in making its determination that Appellant was an SVP, the trial court properly "reviewed the reports of both the Commonwealth and [Appellant's] witnesses." N.T., 6/20/13, at 60.
We find no merit to Appellant's assertion that the trial court's decision to classify him as an SVP was against the weight of the evidence. Therefore, after a thorough review of the record, we affirm the trial court's SVP designation.
Judgment of sentence affirmed. Judgment Entered. _________________
Joseph D. Seletyn, Esq.
Prothonotary