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Commonwealth v. A.R.

Supreme Court of Pennsylvania

October 30, 2013

COMMONWEALTH of Pennsylvania, Appellee
A.R., Appellant.

Submitted Nov. 15, 2012.

Appeal from the Order of the Superior Court, at No. 382 EDA 2009, dated January 15, 2010, Reargument denied March 23, 2010, affirming the Judgment of Sentence of the Chester County Court of Common Pleas, at No. CP-15-CR-0002052-2006, dated January 5, 2009. Appeal allowed July 26, 2012 at 269 MAL 2010. Trial Court Judge: Ronald C. Nagle, Judge. Intermediate Court Judges: Jack A. Panella, Zoran Popovich, Robert E. Colville, JJ.

Vincent P. DiFabio, Esq., Platt, DiGiorgio & DiFabio, Paoli, for A.R.

Nicholas J. Casenta Jr., Esq., Thomas P. Hogan Jr., Esq., West Chester, for Commonwealth of Pennsylvania.



EAKIN, Justice.

Appellant was found guilty of sexual abuse of children,[1] invasion of privacy,[2] and criminal use of a communications facility [3] for videotaping his 13-year-old step-daughter undressing in the bathroom. Although appellant admitted to the videotaping, he contended his motivation was to embarrass her and correct her behavior for having twice entered his bedroom while he was naked. The trial court did not credit appellant's testimony concerning his motivation and found him guilty on all counts. He was sentenced to a probationary

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term of three and one-half years and ordered to undergo a sex offender evaluation and follow all treatment recommendations as a specific condition of his probation. Appellant did not appeal.

Appellant's sex offender evaluator, Dr. Barry Zakireh, recommended appellant participate in mandated sex offender treatment with an emphasis on treatment of his denial and justification behavior, which included the use of therapeutic polygraph examinations when necessary. Dr. Zakireh reasoned appellant portrayed characteristics receptive to treatment, but minimized his actions and underreported his level of sexual attraction to the victim in planning his behavior. During his initial 12-week orientation period in the program, appellant continued to deny sexual motivation for his conduct, which prevented him from successfully advancing in his treatment. Therefore, a therapeutic polygraph was administered to confront appellant with his disingenuous behavior and attempt to steer him back to proper treatment, which required he admit the sexual nature of his actions as established by the trial court's conclusions of fact, reflected in his conviction. During a one and one-half-hour examination, appellant was asked ten questions, three of which were " relevant questions" designed to probe his sexual motivation for his offense.[4] Each of the questions was reviewed word-for-word with appellant before the polygraph was administered, and each was asked in different ways three times to assure accuracy. For each of the three " relevant questions," the test evaluator concluded appellant provided deceitful answers.

After the polygraph examination, a program mental health professional continued to question appellant regarding his motivation for making the videos, and appellant continued his pattern of justifying his behavior and denying any underlying sexual motivation. It was determined appellant was engaged in cognitive distortions for the purpose of reasoning away his behavior and, thus, not making progress in his treatment. As a result, appellant was discharged from the program. Concluding appellant's discharge from the program was a violation of his probation conditions, appellant's probation officer filed a petition with the trial court. The trial court conducted a violation of probation (VOP) hearing, where it received the evidence outlined above, including the results of the therapeutic polygraph examination. Based on this evidence, the trial court found appellant violated his probation requirements, and it revoked his probation. Appellant was sentenced to another probationary term of three years and ordered to complete the sex offender program, including polygraph examinations administered to monitor his compliance.

Appellant appealed to the Superior Court, claiming there was insufficient evidence to support the trial court's conclusion he violated his probation, and the trial court erred in admitting the results of his therapeutic polygraph examination into evidence at his VOP hearing. Commonwealth v. A.R., 990 A.2d 1, 2 (Pa.Super.2010). In a published opinion, the Superior Court affirmed and further expounded conditions on the admissibility of therapeutic polygraph examination results at VOP hearings. Id., at 2, 6-7. The court concluded a reasonable reading of its " precedent regarding probation revocation proceedings indicates that, with certain caveats, therapeutic polygraph evidence may be admitted as supportive proof of a violation of a condition of a

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sexual offender's therapy-related probation requirements." Id., at 6 (citing Commonwealth v. Shrawder, 940 A.2d 436, 443 (Pa.Super.2007); Commonwealth v. Castro, 856 A.2d ...

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