Appeal from the Judgment of Sentence February 29, 2008, In the Court of Common Pleas of Philadelphia County, Criminal Division at No. CP-51-CR-0312481-2006.
The opinion of the court was delivered by: Bender, J
Petition for Reargument Filed August 13, 2009
BEFORE: LALLY-GREEN, BENDER and FITZGERALD*fn1, JJ.
¶ 1 Barmi Fuentes appeals the judgment of sentence imposed following his entry of a negotiated guilty plea to Aggravated Indecent Assault and three counts of Robbery. 18 Pa.C.S. §§ 3125, 3701(a)(1) (respectively). On appeal, Fuentes seeks review of the trial court's determination that he is a sexually violent predator (SVP) under Megan's Law.*fn2 For the reasons that follow, we reverse the trial court's SVP determination and discharge all requirements attendant to it. The judgment of sentence is otherwise affirmed.
¶ 2 The trial court has ably summarized the facts and procedural history of this action as follows:
[Fuentes] approached the 16 year-old victim, her sister, and her sister's boyfriend in a threatening manner; all victims believed [Fuentes] had a gun. [Fuentes] robbed each of the complainants, forced the 16 year-old victim into an alley, fondled her vaginal area, exposed his penis, forced her to touch his penis, forced her against a wall, pulled down her pants, and inserted his finger into her vagina. [Fuentes] threatened to kill her if she told anyone (N.T. 5/30/07, p. 12-13; Megan's Law Assessment, p. 1)....
On May 3, 2007, [Fuentes] pleaded guilty to aggravated assault, and three counts of third degree felony robbery. On February 29, 2008, a Megan's Law hearing and sentencing was conducted before [the] court, after which [Fuentes] was determined to be a sexually violent predator (N.T. 2/29/08, p. 63-64). [Fuentes] was then sentenced to 29 to 102 months incarceration, followed by four years of reporting probation (Id. at 73). No post sentence motion is contained in [the certified record].
On March 20, 2008, [Fuentes] filed a Notice of Appeal. On March 26, 2008, [the trial] court ordered [Fuentes] to file a Statement of Errors Complained of on Appeal within twenty-one days of the Order, pursuant to Pa.R.A.P. 1925(b). On April 15, 2008, [Fuentes] filed his Statement and request for an extension of time to file [a supplemental statement after transcription of the notes of testimony. Appellant's petition for extension of time was denied by the court on April 22, 2008].
Trial Court Opinion, 10/3/08, at 1-2.
¶ 3 Upon receipt of Fuentes's statement pursuant to Rule 1925(b), the trial court filed its corresponding Rule 1925(a) opinion addressing the issues Fuentes raised. Fuentes now raises the following question for our review:
1. Did not the Commonwealth fail to prove by clear and convincing evidence that [A]ppellant met the statutory definition of a "sexually violent predator" (SVP) where; a) the Commonwealth failed to prove by clear and convincing evidence that [A]ppellant suffered from Antisocial Personality Disorder (ASPD), and b) the Commonwealth failed to prove by clear and convincing evidence that
[A]ppellant was 'likely' to engage in future predatory sexual violence, where the instant offense was his only arrest for a sexual crime?
Brief for Appellant at 3.
¶ 4 In support of his question, Fuentes argues that the evidence adduced in support of his SVP designation failed to satisfy either of the required statutory prongs and that, consequently, the evidence was not legally sufficient to prove that he is an SVP. "In reviewing the sufficiency of the evidence regarding the determination of SVP status, we will reverse the trial court only if the Commonwealth has not presented clear and convincing evidence sufficient to enable the trial court to determine that each element required by the statute has been satisfied." Commonwealth v. Plucinski, 868 A.2d 20, 25 (Pa. Super. 2005). The reviewing court must view the evidence in the light most favorable to the Commonwealth. Id. We may not reweigh the evidence or substitute our judgment for that of the trial court. Id. The "clear and convincing" evidence standard requires evidence that is "so clear, direct, weighty and convincing" as to enable the factfinder to reach "a clear conviction, without hesitancy, of the truth of the precise facts" at issue.*fn3 Id. The factfinder is free to believe all, part or none of the evidence presented. Haughwout, 837 A.2d at 484.
¶ 5 A challenge to the sufficiency of the evidence is a question of law of which our scope of review is plenary and our standard of review, de novo. See Meals, 912 A.2d at 218. An SVP is defined as a "person who has been convicted of a sexually violent offense as set forth in [42 Pa.C.S.] section 9795.1 (relating to registration) and who is determined to be a sexually violent predator under section 9795.4 (relating to assessments) due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses." Id.*fn4 In this context, a "mental abnormality" is a "congenital or acquired condition of a person that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons." 42 Pa.C.S. § 9792. Moreover, "predatory" conduct, which is indispensable to the designation, is defined as an "act directed at a stranger or at a person with whom a relationship has been initiated, established, maintained or promoted, in whole or in part, in order to facilitate or support victimization." Meals, 912 A.2d at 218-19 (quoting 42 Pa.C.S. § 9792).
¶ 6 The statute specifically prescribes the process by which an individual convicted of a sex offense may be designated an SVP. Haughwout, 837 A.2d at 484. After a defendant is convicted of an offense specified in section 9795.1, the trial court must order the State Sexual Offenders Assessment Board to assess the defendant for the appropriateness of an SVP classification. See 42 Pa.C.S. § 9795.4(a). The administrative officer of the Assessment Board then assigns one of its members to conduct the assessment pursuant to section 9795.4(b). The statute specifies that the assessment must include, but is not limited to, an examination of the following factors:
(1) Facts of the current offense, including:
(i) Whether the offense involved multiple victims.
(ii) Whether the individual exceeded the means necessary to achieve the offense.
(iii) The nature of the sexual contact with the victim.
(iv) Relationship of the individual to the victim.
(vi) Whether the offense included a display of unusual cruelty by the individual during the commission of the crime.
(vii) The mental capacity of the victim.
(2) Prior offense history, including:
(i) The individual's prior criminal record.
(ii) Whether the individual completed any prior sentences.
(iii) Whether the individual participated in available programs for sexual offenders.
(3) Characteristics of the individual, including:
(i) Age of the individual.
(ii) Use of illegal drugs by the individual.
(iii) Any mental illness, mental disability or ...