Appeal from the Judgment of Sentence May 7, 2013, Court of Common Pleas, Lackawanna County, Criminal Division at No. CP-35-CR-0001386-2012
BEFORE: DONOHUE, OTT and PLATT [*] , JJ.
Appellant, Christopher Brezinski ("Brezinski"), appeals from a judgment of sentence on May 7, 2013 in which the trial court found him to be a sexually violent predator ("SVP") following his guilty plea to one count of aggravated indecent assault, 18 Pa.C.S.A. § 3125(a)(7). We affirm.
Beginning in 2004 and concluding in early 2005, Brezinski, 27-years-old at the time in question, engaged in multiple sexual offenses with his paramour's eight-year-old daughter ("the Victim"). On several occasions, after the Victim asked Brezinski about sex, Brezinski exposed himself to the Victim, fondled the Victim's genitalia, performed oral sex on and received oral sex from the Victim, displayed pornography to the Victim, and had the Victim masturbate him. Brezinski had no prior offense history.
On June 4, 2012 Brezinski was charged with two counts of involuntary deviate sexual intercourse; one count of statutory sexual assault; one count of rape; one count of aggravated indecent assault; one count of indecent assault; one count of indecent exposure; one count of corruption of minors; and one count of recklessly endangering another person. On December 3, 2012, Brezinski pled guilty, pursuant to a negotiated plea agreement, to one count of aggravated indecent assault, 18 Pa.C.S.A. § 3127(a)(7), a sexually violent offense under 42 Pa.C.S.A § 9799.12.
Following Brezinski's guilty plea, the trial court ordered the Pennsylvania Sexual Offender's Assessment Board ("SOAB"), pursuant to 42 Pa.C.S.A. § 9799.24(a), to determine whether Brezinski should receive SVP status. Paula Brust ("Brust"), an SOAB member, evaluated Brezinski on February 7, 2013 and later issued a report finding Brezinski met the criteria of a SVP. Subsequently, around March 25, 2013, Ned Delaney("Delaney"), a licensed psychologist, conducted an independent assessment of Brezinski and opined that Brezinski did not meet the SVP criteria. On May 7, 2013, following a hearing to assess Brezinski's SVP status, the trial court ruled that Brezinski met the SVP criteria and sentenced him to 36 to 72 months imprisonment followed by four years of special probation. This timely appeal followed.
On appeal, Brezinski contends that the trial court erred in finding Brezinski a SVP because the Commonwealth failed to prove by clear and convincing evidence that Brezinski "suffers from a mental abnormality or personality disorder that makes him more likely to engage in predatory sexually violent offenses." Appellant's Brief at 4. This argument largely derives from the time lapse that occurred between Brezinski's sexual misconduct and his arrest. Id. Additionally, Brezinski asserts that his continued, appropriate, non-sexual relationship with the Victim after the sexual misconduct and his four intimate relationships with age-appropriate women since his sexual assault of the Victim demonstrate that Brezinski is unlikely to commit predatory sexual offenses in the future. Id. at 11-12.
When reviewing a trial court's finding that a party is a SVP, the scope of review is plenary. Commonwealth v. Dixon, 907 A.2d 533, 535 (Pa.Super. 2006) (citing Commonwealth v. Krouse, 799 A.2d 835, 837 (Pa.Super. 2002)). The standard of review in such a case provides:
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. The evidence must be viewed in the light most favorable to the Commonwealth. The reviewing court may not weigh the evidence or substitute its judgment for that of the trial court. 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.
Id. (citing Commonwealth v. Plucinski, 868 A.2d 20, 25 (Pa.Super. 2005)). For the reasons that follow, we conclude that the Commonwealth has presented clear and convincing evidence sufficient to enable the trial court to determine Brezinski met the SVP criteria.
A SVP is a person who has committed a sexually violent offense under 42 Pa.C.S.A. § 9799.14 and who fits the SVP criteria set forth in 42 Pa.C.S.A § 9799.24 "due to a mental abnormality or personality disorder that makes the individual likely to engage in predatory sexually violent offenses." 42 Pa.C.S.A. § 9799.12. Section 9799.12 defines a mental abnormality as:
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 ...