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[U] Commonwealth v. Brezinski

Superior Court of Pennsylvania

March 7, 2014



Appeal from the Judgment of Sentence May 7, 2013, Court of Common Pleas, Lackawanna County, Criminal Division at No. CP-35-CR-0001386-2012




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[1]; one count of statutory sexual assault[2]; one count of rape[3]; one count of aggravated indecent assault[4]; one count of indecent assault[5]; one count of indecent exposure[6]; one count of corruption of minors[7]; and one count of recklessly endangering another person.[8] 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[9] ("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[10]("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 person a menace to the health and safety of other persons.

Id. After conviction for a sexually violent offense and prior to sentencing, Pennsylvania law requires the SOAB to conduct an assessment of the convicted party and the trial court to hold a hearing to determine SVP status. 42 Pa.C.S.A § 9799.24(a). In its assessment the SOAB must include, but is not limited to, an evaluation 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.
(v) Age of 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.
(ii) Use of illegal drugs.
(iii) Any mental illness, mental disability or mental abnormality.
(iv) Behavioral characteristics that contribute to the individual's conduct.
(4) Factors that are supported in a sexual offender assessment field as criteria reasonably related to the risk of reoffense.

42 Pa.C.S.A § 9799.24(b). This Court has previously stated that the "'salient inquiry' for the trial court is the 'identification of the impetus behind the commission of the crime, ' coupled with the 'extent to which the offender is likely to reoffend.'" Dixon, 907 A.2d at 536 (quoting Commonwealth v. Bey, 841 A.2d 562, 566 (Pa.Super. 2004)).

In this case, Brezinski pled guilty to aggravated indecent assault, a sexually violent offense under 42 Pa.C.S.A. § 9799.14(d)(7). On May 7, 2013, at the hearing to determine whether Brezinski met SVP status, Brust testified as to her evaluation of Brezinski, including her analysis of the factors provided by Section 9799.24(b). N.T., 5/7/13, at 4-17. For example, Brust reported that although Brezinski's crime involved a single victim, it still included multiple sexual offenses on repeated occasions. Id. at 6. Additionally, Brust testified that Brezinski was a father figure to the Victim and that he took advantage of this relationship because the Victim was dependent on Brezinski. Id. at 6-7. Brust stated that the Victim's age, which was eight when the assaults began, was indicative of pedophilia. Id. at 7. Brust also noted that Brezinski's age (27) when the assaults began was also indicative of pedophilia. Id. at 8.

Furthermore, Brust testified as to whether Brezinski had a mental abnormality. Id. at 9-10. Specifically, Brust believed that Brezinski met the criteria for pedophilia. Id. According to Brust, a person suffering from pedophilia exhibits the following traits: (1) over the course of at least six months, sexual urges or fantasies involving a child under the age of 13; (2) acting on these urges or fantasies; and (3) the assailant is at least 16-years-old and at least five years older than the victim. Id. Brust stated that Brezinski's actions fit the criteria for pedophilia because he had sexual urges towards the Victim for over a year and acted on those urges, the Victim was under the age of 13, and Brezinski was over the age of 16 and more than five years older than the Victim. Id. Importantly, Brust noted that pedophilia is a lifetime condition for which there is no cure. Id. at 10.

Finally, Brust testified that Brezinski exhibited predatory behavior. Id. at 11-12. Predatory behavior consists of "[a]n 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." 42 Pa.C.S.A. § 9799.12. Brust stated that Brezinski demonstrated predatory behavior because he took advantage of the Victim's curiosity about sex in order to perform and receive several different sex acts of over a lengthy time. N.T., 5/7/13, at 11. Additionally, Brust also noted that Brezinski portrayed the Victim as the initiator by stating that she enticed him with her curiosity about sex. Id. at 12. Furthermore, Brust stated that despite knowing his actions were wrong, Brezinski still engaged in the inappropriate behavior. Id.

Brust's explanation of the factors, coupled with her diagnosis of pedophilia, led her to conclude that Brezinski is predisposed "to committing sexual crimes in the future and will cause [Brezinski] to have an internal drive toward committing sexual crimes." Id. at 10. Thus, Brust concluded her testimony by stating that she believed that Brezinski met the criteria of a SVP. Id. at 13. Based on Brust's report and testimony, the trial court ruled that Brezinski was a SVP. Id. at 45.

After reviewing Brust's testimony, we find that the Commonwealth has provided clear and convincing evidence that Brezinski is a SVP. The transcript from the assessment hearing indicates that Brust conducted a detailed evaluation of the statutory factors and Brezinski's mental abnormality. Id. at 6-13. Brust testified, at length, to the statutory factors set forth in Section 9979.24(b), described their application to Brust's case, and analyzed whether it worked in favor of or against a finding of SVP status. Id. Several of the factors worked against Brezinski's interest, such as the repeated assaults, the nature of the sexual contact with the Victim, the age of the Victim, Brezinski's age, Brezinski's relationship with the Victim, Brezinski's pedophilia diagnosis, and Brezinski's predatory conduct. Id. After reviewing the record, we determine that Brust's testimony in this case adequately demonstrated that Brezinski suffers from "a mental abnormality or personality disorder that makes [him] likely to engage in predatory sexually violent offenses." 42 Pa.C.S.A. § 9799.12. Thus, we conclude that the trial court did not err when it found that Brezinski was a SVP.

Brezinski argues that he does not suffer from a mental abnormality or personality disorder because he has not exhibited current behaviors consistent with the diagnosis of pedophilia. Appellant's Brief at 11. Additionally, Brezinski asserts that even if he does suffer a mental abnormality, he has been able to self-regulate his condition reducing the likelihood of committing sexual offenses in the future. Id. Consequently, Brezinski contends, the Commonwealth has failed to provide clear and convincing evidence that he meets the criteria of a SVP. Id. at 11-12.

At the May 7, 2013 hearing to determine Brezinski's SVP status, Delaney testified and submitted a report on behalf of Brezinski. N.T., 5/7/13, at 17-44. Delaney called into question Brust's diagnosis of Brezinski as a pedophile because the pertinent behaviors were not current. Id. at 24-25. Rather, this behavior occurred eight to nine years ago and since that time, Brezinski has carried on an appropriate relationship with the Victim as well as appropriate, intimate relationships with four other women. Id. Specifically, Delaney asserts that the diagnosis of a mental disorder scientifically requires present distress or a current manifestation of behavioral dysfunction. Id. As a result, Delany concludes that Brust's diagnosis lacks a scientific foundation because the evidence shows that Brezinski's deviant behavior was not current, as several years had passed since his misconduct. Id. at 24-26.

However, the Pennsylvania Supreme Court has previously ruled that SVP status is a statutory question and not a question of science alone. Commonwealth v. Dengler, 890 A.2d 372, 383, 586 Pa. 54, 71, (Pa. 2005). In Dengler, the Appellant questioned the scientific foundation of a SOAB member's SVP evaluation. Id. at 380-81, 66. The Supreme Court held that,

The Assembly has defined the triggering term ("sexually violent predator") and has set forth the factors to be considered in making that determination. This scheme represents a legislative policy judgment concerning the proper response to certain sexual offenders. The question of SVP status is thus a statutory question, not a question of "pure science" and, at least in the absence of a challenge to the propriety of the substance of the statute, the question of evidentiary relevance is framed by the very provisions of the statute itself, not some external source.

Id. at 383, 71. Moreover, the Court provided that "the statute does not require proof of a standard of diagnosis that is commonly found and/or accepted in a mental health diagnostic paradigm." Id. Thus, Brust appropriately evaluated Brezinski's SVP status according to the constructs of 42 Pa.C.S.A. § 9979.24(b) which does not require the SOAB to assess SVP status according to accepted scientific methodologies. See 42 Pa.C.S.A. § 9979.24.

Furthermore, in its cross-examination of Delaney, the Commonwealth noted that, in his evaluation of Brezinski, Delaney relies heavily on the The Diagnostic and Statistical Manual of Mental Disorders (Am. Psychiatric Ass'n 4th ed.) (1994) [hereinafter DSM-IV] definition of mental disorder. N.T., 5/7/2013, at 28-30. The Commonwealth pointed out, and Delaney admitted, that while the DSM-IV definition of mental disorder does provide for a present manifestation of inappropriate behavior, it also includes such factors as "a significantly increased risk of suffering death, pain, disability, or an important loss of freedom." Id. at 30-31. The Commonwealth asserted that this demonstrates that a present manifestation of behavior is not the lone criteria for diagnosing a mental disorder. Thus, even though Brezinski may not currently be exhibiting signs of pedophilia, it does not mean that Brust's diagnosis was inappropriate.

Accordingly, we affirm the judgment of sentence.

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