*1 1212 (1996). Therefore, 894, the re- omitted); 898 (footnote A.2d and citations 916
Id. at Hosp., pertaining to the admissions quests v. Hill for Chestnut also Stimmler see 145, 18, 160 n. 539, n. X of Edward Sto- interpretation 564 of Item Pa. 602 right ver, Tenants the of granting 18 will Sr.’s “merely precatory language first refusal Court determined
The Commonwealth Decedent,” law a conclusion of the by the admissions for requests the 4014, fact, of Rule scope conclu- beyond permissible of but the not matters were DOC permissible not within the before the trial properly law sions of and thus 4014, properly thus not scope Rule of Trust’s of consideration its of court in consideration summary judgment. See Mo- for motion summary judgment. for motion 1/19/10, at Summary Judgment, tion for It further con- A.2d at 916. Dwight, 623 ¶ such, grant of sum- B 3. As Exhibit ad- deeming requests cluded that improper.5 judgment in this case mary untimely- Dwight’s having despite mitted reversed, pro- for case remanded Order requests, answers submitted Ju- Opinion. with this ceedings consistent of presentation court eliminated trial relinquished. risdiction on its mer- against DOC Dwight’s case lan- its, plain conflict with is in which fa- the standards Rule 4014 and
guage of an action on its of
voring the resolution Finally, the Commonwealth
merits. Id. that the DOC did assert noted
Court would withdrawing the admissions Pennsylvania, of COMMONWEALTH the record prejudiced, and cause it to be Appellee Id. an assertion. support such would not such, found Court As summary judgment of grant WHANGER, Appellant. Thomas Id. that time was erroneous. Pennsylvania. Superior analogous to the scenario is Dwight appeal. us on The law is now before case Jan. Submitted interpretation that the well settled Oct. Filed law, not a question a will is a words of In re opinion. fact or See matter of Found., 243, 683 Pa.Super.
Barnes stances, may support a admissions deemed legal See Charles Alan Wright, conclusions. summary judgment." The record grant L. R. Mary Kay Miller, Kane, Richard Arthur however, not reflect such in this does 8B Marcus, Federal Practice & Procedure ed.2011) ("A (3d improper request "appropriate circumstances.” The for an n. 7 party legal conclu- require request of a cannot be used for admission admission conclusion.”) aside, legal had Ten- truth of a the trial court to admit the sion because Scott, omitted); (citation (untimely) response requests Fed. for Warneckev. ants’ Cir.2003). (5th admissions, formally Appx. the fact that did not flexibility response, and the Tenants’ rule on a case is by Rule 4014 so that provided of our 5. To echo the sentiments merits, Court, the trial court holding determined on its not mean our this case does withdraw permitted Tenants to noncompliance should have with the that we condone Stimmler, ruling upon the admissions in the deemed Procedure. Rules of Civil file request of time to said fully for an extension A.2d at 160 n. 18. "We n. at 564 responses. id. See acknowledge appropriate under circum- *2 Swan, Suzanne M. Chief Public Defend- Allman, Defender, er and Carrie L. Public Pittsburgh, appellant.
Michael Streily, Deputy W. District At- torney, Margaret Ivory, Assistant District Attorney, Commonwealth, Pittsburgh, for appellee. BOWES,
BEFORE: LAZARUS and *, COLVILLE JJ. COLVILLE,
OPINION BY J.: This case is an from the order designating Appellant a sexually violent (“SVP”) predator under 42 Pa.C.S.A. that, § 9795.4. He contends because the aforesaid statute requires SVP assess- ments to be conducted * Judge assigned Retired Senior Superior Court. claims waiver. party when a having his ment at issue erred in this case
the court
rules, statutes,
Indeed,
he
sentenced.
if
were no
after
there
done
assessment
evidence was insuffi-
re-
rights,
legal
or other
contends
constitutional
He also
*3
designation. We
the SVP
support
ques-
cient to
there would never be
quirements,
the order.
affirm
were
requirements
those
tion of whether
fact that
the statute
waived.
sex of-
guilty to various
pleading
After
not
events does
sequence
forth a
sets
to
fenses,
proceeded
Appellant
have waived
Appellant could not
sentenced, mean that
Before he was
May
2009.
sequence.
required
in which he
however,
a form
he executed
law re-
understanding the
acknowledged
Indeed,
any
that
quite plain
the law is
place
take
assessments
quires that SVP
rights statutory or other
number of
form,
In that same
sentencing.
before
may be waived. Common
requirements
Ap-
requirement.
waived
Appellant
941 A.2d
Mallory, 596
wealth v.
was then sentenced.
pellant
(2008);
Byrne,
v.
Appellant
fact that
In addition
In
(Pa.Super.2003).
734-35
833 A.2d
requirement
affirmatively waived
waived
Appellant
it is clear
this
before
be conducted
assessment
the SVP
statutory language of 42
that the
his claim
mo-
post-sentence
sentencing, he filed no
9795.4(a) prohibited
§
the se
Pa.C.S.A.
he was sentenced
complaining that
tion
sentencing and
in which his
SVP
quence
He also filed
assessment.
before his SVP
Having waived his
place.
process took
time.
appeal
no
at that
claim,
relief.
not now entitled to
he is
by the Sex-
was later assessed
Appellant
302(a).
Pa.R.A.P.
Board
Assessment
ual Offenders
Appellant relies on Common-
We note
(“SOAB”).
February
the court
(Pa.Su-
Baird,
pellant (the Commonwealth) in that case appellant waived claims monwealth by objecting at sen- preserve did its claim sen- sequence of his complaint about trial decision to sen- tencing to the court’s assessment. tencing and SVP before the SVP as- tence the defendant point first is that the Appellant’s at 115. determination. sessment and of 42 Pa.C.S.A. statutory language case, Appellant made present In the no 9795.4(a) assessment indicates the SVP objection. such after conviction but conducted be argues Appellant also true sentencing. This assertion is modify May its had no statute, like the enough, the fact that but by classifying him sentencing order statute, done in requires things to be On this February as an SVP way or certain order does a certain he cites 42 Pa.C.S.A. point, be cannot requirement mean that modify or re allowing a court to rule, statute, always a waived. There is its thirty days of scind an order within legal require- or other right, constitutional (Pa. (internal taken. long Super.2006) as no has been entry as omitted). Furthermore, the court lost He contends citation entering modify its sentence alter or The determination of a[n] [individu- thirty order because more than status al]’s SVP be made passed after he was sentenced. days had following assessment and hearing before the trial [SOAB] Section Appellant’s reliance on In order court. to affirm an SVP misplaced. An 5505 is SVP determination we, designation, as a reviewing consequence is a of a conviction collateral must be able to conclude fact- that the sentence. Commonwealth and is *4 finder found clear and evi- 399, convincing 404-05 Leidig, Pa. 598 the (2008). dence that individual is a[n] That SVP or being [SVP]. the the possibly not or der be a modification could Krouse, v. Commonwealth 799 835 A.2d of the The sentencing rescission order. (en banc), (Pa.Super.2002) de- sentencing order the SVP thing; was one nied, 671] A.2d 586 [573 another. SVP or order was Because the Superior The Court further stated sentence, modify not the Section der did reverse a trial would court’s determi- limits a to mod ability 5505—which court’s nation of SVP status if Com- the not ify applicable. its orders —is did present monwealth clear evidence convincing sufficient to enable
Appellant next evidence claims the the trial court to each determine that to deter support was insufficient claim, too, element of This Our stan had been satis- mination. fails. reviewing sufficiency challenge fied. dard for following:
to an determination is the SVP SVP, To deem and individual a[n] not weigh presented We do the evidence Commonwealth must first show that he court and do not make has been convicted of a sexually violent Instead, credibility determinations. we offense set forth in 42 Pa.C.S.A. view all evidence and its reasonable Askew, (Pa.Su- 9795.1. A.2d 624 in a light inferences most favorable to per.2006). Secondly, the Common- the Commonwealth. We will disturb wealth show that must the individual has designation only if Common- abnormality mental or dis- personality present did not and con- wealth clear likely engage order that makes to [him] evidence court to vincing to enable the in predatory sexually violent offenses. element required by find each Law, Megan’s Id. In Accordance with statutes. following factors should be consid- Feucht, A.2d ered: (Pa.Super.2008). (1) offense, Facts the current in- Having reviewed the record cluding: opinion in light foregoing court’s (i) Whether offense involved standard, we find the was suffi- evidence multiple victims. support cient designation. (ii) Whether individual exceed- so, adopt portions we doing following necessary ed the means to achieve opinion: of the trial court’s the offense. provides ... Law II that the (iii) The nature of con- the sexual shall trial court “determine whether the tact with the victim. proved by Commonwealth has clear and (iv) Relationship of convincing evidence that the individual the individual Askew, Commonwealth v. the victim. a[n] [SVP].” pedo- diagnosis of ing [Appellant's (v) the victim. Age of inadequate because the doctor philia was (vi) included a the offense Whether “ample evidence” explain did cruelty by the unusual display of (SVP to make the determination. used the commission of during individual 11). However, in his Sexual Hearing, p. the crime. June Offender Assessment dated (vii) vic- capacity of the The mental (hereinafter “S.O.A.”), Dr. p. tim. necessary the factors explained Pass (2) history, including: offense Prior pedophilia. meet the classification (i) criminal prior The individual’s [pedophi- diagnostic classification This record. a behavioral manifesta- requires lia] (ii) complet- the individual Whether least 6 the course of tion over any prior ed sentences. conduct, fanta- months of sexualized (iii) partici- the individual Whether urges pre-pubescent with a sies or for sex- programs in available pated behaviors, fan- child children. *5 ual offenders. clinically signifi- urges tasies or cause individual, (3) Characteristics impor- in impairment or cant distress including: functioning. Lastly, this tant areas of (i) Age of individual. requires that the [individual] disorder (ii) by the indi- illegal drugs ofUse years age at least 16 and must be vidual. years older than the child or at least 5 (iii) illness, mental Any mental dis- who have been victimized children abnormality. mental ability or the behavior. (iv) characteristics that Behavioral 3). wrote, (S.O.A., “in this p. He further con- contribute to the individual’s that en- regard, it is noted duct. in conduct with his gaged illegal sexual (4) in a supported that are Factors beginning age at the adopted daughter offender assessment field sexual old, years progressing when she was 9 to the risk reasonably criteria related approximately years for forward of reoffense. 3). (S.O.A., p. Dr. Pass testi- months.” 9795.4(b). 42 Pa.C.S.A. identity pedophilia that is sexual fied ... that contention is [Appellant’s first disorder, which behavior falls and sexual that had a mental [he] the determination of mental abnor- into the classification Under abnormality was unfounded. 11). (SVP Hearing, p. mality. abnormality” is Megan’s Law “mental by Dr. upon completed the S.O.A. Based defined as: Pass, ... correctly that he concluded acquired or condition of [CJongenital pedophile, as a [Appellant] is classified emotional or person that affects the abnormality. This which is a mental person capacity volitional Dr. claim merit because Pass testi- lacks person that predisposes manner that Hearing that there was fied at the SVP of criminal sexual to the commission support pedophilia ample evidence per- that makes the degree acts to a into the pedophilia ... falls safety to the health and son a menace abnormality. of mental classification persons. of other ... [position also] is [Appellant’s [Appellant] § 9792. Pa.C.S.A. presented to indi- there was no evidence [testimony from the Com claims that displayed Pass,] that the offenses involved regard- cate expert, Dr. monwealth’s cruelty unusual also that there maintains that he was the victim’s presented [Appellant] no evidence father, adopted and the relationship was necessary exceeded them means not initiated for a sexual purpose. How- achieve the offense as evidenced ever, the statute require does not that a force, threats, weapons. lack of or relationship be pur- initiated for a sexual S.O.A., wrote, Dr. Pass “[TJhere pose. assignment no scientific of weighted val- [Appellant] engaged in illegal sexual determining ues that one or all of the adopted conduct with his daughter when Megan’s Law assessment factors are age she was nine and continued for important. more or less A[n] [individu- (4) (4) approximately four years and four may meet the al] classification criteria 3). (S.O.A., months. p. Dr. Pass testi- for a sexually predator violent with one that, fied although relationship 2). (S.O.A., all of the factors.” p. probably just exploit established 9795(4), According to [42] Pa.C.SA. victim, [Appellant] served a role an assessment shall include examina- of adoptive father until he made a con- tion of the list of factors described scious engage decision to in deviant sex- above. necessary It is not for the of- (SVP 9). ual conduct. Hearing, p. display fense to cruelty, unusual nor is it relationship became one of sexual exploi- necessary to show that offender exceed- tation, which continued more than necessary ed the means to achieve the years. four supports This the factor that [Appellant offense. also asserts] [Appellant] in fact looked at and utilized designation as a violent *6 [him] the relationship with adoptive his daugh- predator inappropriate was because he (SVP ter in an exploitive manner. prior had no history criminal there 9). Hearing, p. S.O.A., In his Dr. Pass was one victim. It is not necessary addresses the issue of predatory behav- for an offender to have a prior criminal ior, “... concluding, [Appellant] did en- history, or for the offense to include gage in acts directed at the victim with more than on victim. These factors are initiated, whom a relationship had been simply to be in considered the determi- maintained, established, maintained or nation sexually of an offender’s violent promoted in whole or part in in order to status-Askew, predator [at A.2d facilitate or support victimization.” Thus, 629-30]. this claim lacks merit. 4). (S.O.A.,p. Next, ... [Appellant] contends that the Therefore, [Appellant’s claim that against offenses the victim were situa- prolonged period opportun- of abuse was tional because he lived with the victim istic, predatory, not is unfounded based figure. and served as a father He ar- expert on the findings of Dr. Pass’ testi- gues that the offenses were opportunis- mony and regards assessment with tic, predatoiy. not The Megan’s Law ... [Appellant], predatory defines behavior as [Appellant’s ... [position is that also] “an act directed at a stranger or at a there acceptance of responsibility person with whom a relationship has through guilty plea. In defense coun- initiated, established, been maintained sel’s closing the SVP Hearing, counsel promoted or in part whole or in in order stated, agrees Dr. Pass “[E]ven to facilitate or support victimization” 42 people plead who guilty to or are con- Pa.C.SA. [Appellant] states victed of committing the relationship against with his crimes adopted daughter wholly children, independent is, existed their own sexual crimes that (SVP sexual [Appellant] misconduct. also are likely less to reoffend.” Hear- utilize a 16). However, that a claim com- sent
ing, p. it was aggravating merit because lacks SVP status as pletely defendant’s Hearing or in either established in see mitigating factor S.O.A. Dr. Pass’ Shugars, Commonwealth ;Ji ‡ [*] # # [*] (Pa.Super.2006), mere fact that a evidence, aggravating consider can or should foregoing upon Based met its such as a defendant’s mitigating Commonwealth factors clear [Appellant] proving burden of jurisdic- speak status does convincing evi- by clear and a[n][SVP] question. tional dence. Harris, supra, Initially, I note that (in- 08/13/10, at 3-10 Opinion, Trial Court dissent, the trial court by relied on omitted). ternal footnotes January on the defendant sentenced discussion, Ap- foregoing our light date, and on that same Common- affirm merit and we claims lack pellant’s court to direct requested the trial wealth of sentence. judgment an assessment undergo the defendant affirmed. Order Sexual Offender’s Assessment by the (“SOAB”). The trial court refused Board joins Majority
Judge BOWES
sepa-
two
the assessment.
to order
Concurring Opinion.
and files a
Opinion
ap-
occurred.
defendant
appeals
rate
Dissenting
files a
LAZARUS
Judge
of sentence and
pealed
judgment
his
Opinion.
the trial court’s
appealed
BY
OPINION
CONCURRING
the SVP assess-
refusing
order
to order
BOWES, J.:
mat-
Obviously, sentencing in that
ment.
majority’s
rea-
join
in full with
hearing.
ter
before the SVP
was conducted
re-
Appellant’s
claim
disposition
soned
Indeed,
reversing
sexually violent
timing
of his
garding
court’s refusal to order an assess-
*7
(“SVP”) hearing and his waiver
predator
the SOAB assess-
preclude
ment did not
hearing before
right
to have that
occurring
the defendant
ment from
after
separately
I
to address
sentencing. write
sentenced,
recognizing that
implicitly
contention that the trial
the dissent’s
occur after sentenc-
hearing
an
could
jurisdiction in this matter.
was without
Hence,
hearing may occur
ing.
an SVP
cognizant
published
I
that no
deci-
am
pro-
sentencing, although the statute
after
trial
on the issue of a
spoken
sion1 has
sentencing.
transpire
for it to
before
vides
authority
or
to conduct
court’s
has
noted that the SOAB
It should also be
hearing nine months after sentenc-
an SVP
ninety days
report
to submit its
Baird,
ing. Neither Commonwealth
conviction,
attorney’s office after
district
nor
(Pa.Super.2004),
A.2d 114
Common-
thirty-day time frame
which is outside the
(Pa.Su-
Harris,
wealth v.
that
which the dissent maintains
during
jurisdiction nor does
per.2009), discusses
jurisdiction to deter-
the trial court has
utilize the word
Law statute
status.
agree
with the dis- mine SVP
jurisdiction. While
issue,
non-binding and cannot
is
1. The Commonwealth has cited in its brief an
sions on
unpublished
party
Court decid-
Court
upon
decision from this
either a
or this
be relied
ing
concluding
this issue and
the trial court
deciding
binding precedent
the case.
jurisdiction.
Appellant's brief at
retained
See
65.37(A).
§
See IOP
unpublished
17. That
like
deci-
other
Nevertheless,
parties appeal-
since both
not final until
the court made its SVP
Harris,
supra,
thirty days
ed in
determination. The Harris
Court,
howev-
elapsed,
jurisdictional question
related
er,
status,
found
although collat-
§
to 42
55052 did not
Pa.C.S.
vest at that
eral
punishment,
and not
part
Harris,
Further,
question
time.
Harris,
judgment
of sentence.
supra
supra,
judgment
was when the defendant’s
Therefore,
argument
can be
purposes
of sentence became final for
irrelevant,
made that 42 Pa.C.S.
5505 is
filing
timely
petition:
PCRA
after our
judgment
as the
of sentence was not final-
Supreme Court
reversed
court’s
ized until the court entered the SVP order.
refusal
to order an SVP assessment or
if
Seemingly,
judgment of sentence is not
when this Court earlier affirmed the de-
order,
final until
entry
of the SVP
then
fendant’s conviction. The resolution of
jurisdictional
the dissent’s
position largely
query,
the defendant’s judgment
arguendo disappears.
Assuming
ninety
of sentence became final
days after
judgment of sentence is final without re-
Supreme
our
Court determined that
gard
determination,
to the SVP status
trial
refusing
court erred in
to order a
position with which the Harris Court ex-
assessment,
Megan’s Law
does not answer
pressly disagreed,
position
dissent’s
subject
jurisdiction question
matter
be-
still fails.3
fore this Court.
Little,
Commonwealth v.
455 Pa.
The dissent
implicitly appears
to ac-
1220 (2008), a it can after convic- 399 occur saying jurisdiction without goes
It
Further,
the sub-
jurisdiction of
42
sorts:
tion under
Crimes Code.4
of two
is
jurisdiction
§
in the
9795.4
the court of com-
matter
Pa.C.S.
confers
ject
objection to
An
authority
involved.
to conduct
parties
pleas
of the
mon
with
can
subject-matter
jurisdiction
of
a
conviction.
hearings
lack
after
criminal
waived;
at
may be raised
never be
subject
dealing
I find cases
with
matter
by the
stage
proceedings
in
any
in
cases to be analo-
jurisdiction
criminal
in its own motion!
byor
court
parties
addressing
competency
of a
gous.
guilty plea
axiom that
The familiar
matters,
Supreme
in
our
criminal
issues,
nonjurisdictional
is
all
waives
has held that
the existence of a
Court
prin-
general
a reflection of this
merely
mistake,
case
procedural
on the
person,
of the
ciple. Jurisdiction
determination,
does not
prior hand,
by the con-
created
other
be
jurisdic-
subject
a court of
matter
divest
thereby waives
party,
who
sent of
Jones,
v.
593
tion. See Commonwealth
Pa.
process
in the
objection to defects
(2007).
205,
295,
The
211
Jones
court.
brought
which he is
competen-
question
held that the
of
Court
omitted).
(citations
im-
Equally
272
Id. at
type
controversy
centers around the
of
cy
re-
“[sjubject
jurisdiction
matter
portant,
for consideration and whether it
presented
hear
competency
a court to
of
lates
general
class of cases
is
controversy
type
pre-
decide
of
hears and
Id. Certain-
determines.
Bethea,
v.
574
sented.”
disputes
pleas
the common
ly, no one
1066,
More-
A.2d
1074
Pa.
828
original
jurisdic-
matter
subject
court has
over,
SVP hearings.
tion over
of violations
arising out
Controversies
Additionally,
jurisdiction
subject matter
Code
entrusted to the
the Crimes
are
Little,
requirement.
supra;
has a notice
of com-
original jurisdiction of the courts
Jones,
requirement
supra. The notice
18
pleas
mon
for resolution. See
Pa.C.S.
judhce
in the case sub
unquestionably met
tier of
Every jurist
within that
when the court informed
sen
competent
judicial system
unified
is
obligations
Law
tencing
arising
decide
out
hear and
a matter
that he would be evaluated
deter
Art.
Pa.
of the Crimes Code.
Const.
Accordingly,
if he was an
mine
SVP.5
(establishing
subject
whether
question
controversy is
of common
within the uni-
pleas
courts
hearing
an SVP
can
matter
system).
judicial
fied
thirty
a sentence
days
be lost
after
is
hearing
Although Megan’s
Law
does
where
is taken.
imposed
no
criminal punishment,
not entail
Common-
negative.
response
query
to this
is in the
Wilson,
raising subject claim of matter undoubtedly A trial court both retains diction, challenge are actually posing a personal subject and matter power, authority, to the tribunal’s where thirty days appeal. for there is no Rela- to act. See Riedel v. Human ably § 5505. As the majority Pa.C.S. Reading, Comm’n tions details, of an SVP hearing since does 121, 124 confu- This punishment entail criminal or relate the meaning sion between the of the terms incarceration, 42 terms of a defendant’s “jurisdiction” “power” not sur- and is § prevent Pa.C.S. 5505 does not the court syn- While the terms are prising. entering from an SVP order after impos- they are often inter- onymous, used because, ing a sentence. This is the as by judges litigants changeably and out, majority points the order that resulted Riedel, Id. out alike. we teased hearing from the did not modify terms, the distinctions between these actual by Appellant sentence received explicating Appellant manner. still must serve the exact originally sentence [jJurisdiction solely relates com- Moreover, previously fashioned. as have particular of the or ad- petency out, Harris, pointed according to sta- body ministrative to determine contro- part judgment tus is of the of sentence. of the to which general versies class order judg- the SVP finalized the presented case then its consid- ment of sentence. Power, the other belongs. eration on hand, ability means the of a decision- Likewise, the Megan’s Law statute making body to a cer- order or effect not criminal nature and does not ex- tain result. pressly subject jurisdiction, matter discuss liberally it is to be its construed to attain relating power to a tribunal’s Claims 1928(c). § purpose. 1 Pa.C.S. are, pur- subject ju- unlike claims of matter pose protect safety of the is to risdiction, waivable. Id. at 125. community by welfare providing and (bracket in Melograne, supra origi- at 1167 public adequate with and information nal). notice about sex offenders. See 42 Pa.C.S. Instantly, competent SVP court was 9791. Where court or counsel of, Appellant’s to decide issue of SVP makes the defendant aware as in this status, notification, ample provided possible registration, Hence, the proceedings. Appel- notice of other re- counseling Law quirements properly plea, lant’s claim is more labeled time of his see 9795.3, power court to challenge vary Pa.C.S. which can on based status,6 the SVP a determination of SVP enter order and conduct there is child, rape involuntary guilty plea 6. Defendants convicted of certain enumerated required by registration intercourse, are to abide crimes aggravated in- deviate sexual requirements regardless assault, for life whether subject reg- he decent to lifetime *10 they are determined to be an SVP. See 9795.1(b)(2). 42 Pa.C.S. istration. 9795.1(b). Appellant's on Pa.C.S. Based Finally, acknowledge prag- in I wish to the to the defendant simply prejudice no permitting matic a to transpire to to benefits of defendant sentencing prior allowing hearing until after sentenc- Permitting waive the hearing. defendants SVP an SVP by It the less- agree ing. to an can benefit defendant to waive SVP and their counsel ening possible aggravating factors. On sentencing and then declar- hearing before hand, is beneficial to the other the Com- pleas court is without ing that the common because a defendant cannot the matter later con- monwealth jurisdiction to decide plea after purpose.7 guilty is withdraw his very What travenes swpra, more, establishing injustice. without a manifest SVP discussed hearing must be Ap- of Where the SVP conduct- to decide issue competent status, sentencing, a defendant has at prior and ed to pellant’s Appellant SVP to a ninety days least to decide withdraw proceedings. notice of given adequate guilty plea thorough colloquy, after a often nothing Megan’s within the Since there is cases,9 by asserting law in sex crimes prohibiting Law or our case heinous his in contravention to his waiving right from his to an innocence direct defendant Furthermore, could plea. defendant hearing SVP before declar- jurisdiction plea receiving withdraw after ing subject matter over his that he thirty days report finding lost after sen- SOAB meets SVP matters is if requirements Only no is taken from the of an SVP. Com- tencing where sentence, subject establish that the with- the SVP court retained monwealth can addition, In drawal is can the court decline jurisdiction.8 Appel- prejudicial matter challenge grant to to the withdrawal. there are lant his the court’s waived parties entering him an benefits authority by agree- to declare SVP to both to hear- and to allow the court to ing prior plea agreeing to be sentenced hearing. enter its before the SVP ing. sentence chest, every rubbing legs, permit Appellant It involved her 7. would also defendant sen- vagina made its determi- if tenced before the court and and asked her she wanted him require- escape Law SVP to Affidavit Probable nation to "stick it in her.” See of subject specific matter can Appellant, ments since Cause. in the second inci- victim, may waived and be raised at by never be dent related rubbed her chest dangerous vagina ramifications of such a pants time. and both her and and removed exaggerate. would be difficult to removing pants. decision his own underwear Appellant Another involved fon- occurrence courts, Court, dling touching vagi- trial and our note that the victim's chest and her sponte approximately Court each sua raise na underneath her clothes for subject jurisdiction, minutes, yet issue matter I am eight exposing penis his erect and single decision forcing aware of a court in the victim to masturbate him. The has specific this Commonwealth that ruled that an final described victim incident was without because it rubbing Appellant underneath her involved chest, hearing sentencing. vagina after legs, conducted clothes her and while kiss- ing licking her chest and neck. Other and case, Appellant pled guilty Appellant molestation involved the instant occurrences of child, involuntary forcing rape exposing penis her deviate sexual his to touch it. intercourse, assault, statutory Appellant aggra- police sexual The victim informed as- assault, assault, sixty approximately indecent saulted her times over vated indecent years. fondling supporting four admitted corruption of minors. The facts sexually kissing vagina. plea her breasts his were that he molested his victim and adoptive daughter period years acknowledged placing He her for a also mouth on four years penis touching beginning when she was nine old. The his at least twice and police that the victim’s on different occasions. victim informed first incident anus
1223 BY DISSENTING OPINION ute mandates that the SOAB assessment LAZARUS, J.: must be ordered completed, and the report SOAB submitted to the District At-
Our court has stated that:
torney, prior to sentencing. See Common-
integral
process
nature of the SVP
Baird,
(Pa.Su-
114,
wealth v.
856 A.2d
sentencing
with
evident
from per.2004);
see
also
Pa.C.SA.
9795.4(e)(4)’s
requirement that the as
9795.4(e)(8) (“[a]t
hearing prior
report by
sessment
expert
Board
the court shall determine
“be provided
agency preparing
whether the
proven
Commonwealth has
by
Thus,
presentence investigation.”
clear
convincing
evidence that the in-
pre-sentence investigator
is given
is a sexually
dividual
violent predator.”).
report
consideration
the in
Moreover,
majority
has cited no au-
vestigator in writing his or her own re
'
thority granting the trial
port and recommendation for sentenc
impose
given
SVP order nine
ing, and we have
report
held the Board
months after sentencing.
It is one thing
be utilized
the sentencing court
to find that a defendant has waived a
in sentencing.
as an aid
Commonwealth
right;
it is another to find that a court has
(Pa.Su
P.L.S.,
894 A.2d
the authority
to act at a
denied,
per.2006), appeal
given time. Today the majority leaves
Commonwealth v. (Pa.Super.2009). while the ma
jority concludes that an “SVP order could possibly be a modification or rescission order,” Majority Memo
randum, this statement is at odds practical
with the reality that sentencing
courts often do take a defendant’s SVP
status into imposing account when sen
tences. It is for this reason that the stat- majority’s SVP,
1. The
reliance on Commonwealth v.
elude that the defendant was not an
but
Leidig, 598 Pa.