J-S13034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellant

                     v.

J.D.M.

                          Appellee                   No. 1461 WDA 2014


                Appeal from the Order Entered August 29, 2014
                In the Court of Common Pleas of Mercer County
               Criminal Division at No: CP-43-CR-0001594-2013


BEFORE: BENDER, P.J.E., MUNDY, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                             FILED JULY 14, 2015

      The Commonwealth appeals from the order of the Court of Common

Pleas of Mercer County declining to designate Appellee J.D.M. as a sexually

violent predator (SVP). For the reasons stated below, we vacate the order,

and remand for proceedings consistent with this memorandum.

      The trial court summarized the relevant factual and procedural history

as follows:

              [Appellee] was arrested on October 25, 2013, and charged
              with three (3) counts each of statutory sexual assault,
              involuntary deviate sexual intercourse, sexual assault, and
              aggravated indecent assault. The charges arose out of
              alleged sexual contact that [Appellee] had over several
              years with his cousin. The first alleged contact occurred
              when the victim was 12 and [Appellee] was 17, and ending
              when the victim was 15 and [Appellee] was 21.

              A preliminary hearing was held on November 1, 2013.
              [Appellee] was ordered held for trial on all charges.
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              [Appellee] pled guilty on March 4, 2014, to one count of
              aggravated indecent assault under [18 Pa.C.S.A.
              § 3125(a)(8)1]. In the colloquy, [Appellee] admitted [to]
              vaginal intercourse on several occasions with someone
              under the age of 16 when he was 21 years of age.

              A [Pennsylvania’s Sex Offender Registration and
              Notification Act (SORNA)2] [h]earing was held on August
              29, 2014. The sole witness to testify was Brenda Manno[,
              a member of the Pennsylvania Sexual Offender
              Assessment Board]. Her testimony can be summarized as
              follows:

              The evaluation was conducted on May 14, 2014.
              [Appellee] has no prior criminal history. The victim was a
              cousin and the first sexual encounter occurred when she
              was 12 and it involved sexual intercourse. The abuse
              involved digital penetration with markers and pens and
              caused bleeding.
____________________________________________


1
    Section 3125(a)(8) provides:

        Except as provided in sections 3121 (relating to rape), 3122.1
        (relating to statutory sexual assault), 3123 (relating to
        involuntary deviate sexual intercourse) and 3124.1 (relating to
        sexual assault), a person who engages in penetration, however
        slight, of the genitals or anus of a complainant with a part of the
        person’s body for any purpose other than good faith medical,
        hygienic or law enforcement procedures commits aggravated
        indecent assault if:

        ...

           (8) the complainant is less than 16 years of age and the
           person is four or more years older than the complainant and
           the complainant and the person are not married to each
           other.

18 Pa.C.S.A. § 3125(a)(8).
2
    42 Pa.C.S.A. §§ 9799.10-.41.



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           An objection to the use of markers and pens was made on
           the basis of hearsay. The objection was overruled on the
           grounds it was admissible for purposes of rendering an
           opinion.

           Ms. Manno assessed the statutory factors as follows:

              A. The incident did not involve multiple victims;
              B. The force did not exceed the means necessary to
                 achieve the offense;
              C. The sexual contact was significant in that it included,
                 inter alia, penetration with objects;
              D. The victim was not a stranger;
              E. The victim was 12 when it started and ended when
                 she was 15;
              F. There was no unusual cruelty;
              G. There was a substantial age difference;
              H. There was no history of drug abuse; and
              I. There was no history of mental illness.

           Based on these factors, Ms. Manno felt that [Appellee] met
           the criteria for unspecified paraphilia disorder. [Appellee]
           further lacked the power to control his conduct. There
           w[ere] also predatory issues in this case because he used
           his family relationship to have access to the victim.
           Hence, Ms. Manno found [Appellee] met the criteria to be a
           sexually violent predator.

           This [c]ourt found [Appellee] not to be a sexually violent
           predator. This decision was based, in large part, on the
           Commonwealth’s failure to call the victim to corroborate
           the testimony regarding the use of items to penetrate the
           victim and the resultant bleeding. Without such testimony
           that evidence is hearsay and not admissible. It was clear
           to this [c]ourt that testimony was essential to Ms. Manno’s
           opinion.

           [Appellee] was sentenced immediately following the
           SORNA [h]earing. He received a term of imprisonment of
           not less than four (4) years nor more than ten (10) years.
           This appeal followed.

Trial Court Opinion, 10/22/14, at 1-3.


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      On appeal, the Commonwealth raises the following issues for our

review:

      1. Did the [t]rial [c]ourt err in determining that the Sexual
         Offenders Assessment Board expert was not permitted to
         testify based upon hearsay from the victim, and in finding
         that permitting the same would be violative of [Appellee]’s
         Sixth Amendment Confrontation Clause rights?

      2. Did the [t]rial [c]ourt err in determining that Appellee is not a
         sexually violent predator because the Commonwealth did not
         call the victim to testify?

Commonwealth’s Brief at 4.

      With respect to the first issue raised by the Commonwealth, as stated,

the trial court found Appellee not to be an SVP principally because it believed

the Commonwealth’s expert opinion was fatally flawed, since its expert

relied upon statements made by the victim to police.       Trial Court Opinion,

10/22/14, at 3. The trial court viewed the victim’s statements as to the

Appellee’s use of items to penetrate her as essential to the expert’s SVP

opinion. Id. In the absence of the victim testifying at the SVP hearing, the

trial court believed the expert’s testimony to be based upon, and

undermined by, inadmissible hearsay testimony. Id. at 6. This assertion of

error challenges the trial court’s ruling on admissibility of evidence, which we

review as follows:

      The standard of review governing evidentiary issues is settled.
      The decision to admit or exclude evidence is committed to the
      trial court’s sound discretion, and evidentiary rulings will only be
      reversed upon a showing that a court abused that discretion. A
      finding of abuse of discretion may not be made merely because

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      an appellate court might have reached a different conclusion, but
      requires a result of manifest unreasonableness, or partiality,
      prejudice, bias, or ill-will, or such lack of support so as to be
      clearly erroneous. Matters within the trial court’s discretion are
      reviewed on appeal under a deferential standard, and any such
      rulings or determinations will not be disturbed short of a finding
      that the trial court committed a clear abuse of discretion or an
      error of law controlling the outcome of the case.

Commonwealth v. Koch, 106 A.3d 705, 710-11 (Pa. 2014) (quotation

marks and citations omitted). With this standard in mind we turn now to the

specifics of the trial court’s evidentiary ruling regarding the Commonwealth’s

expert’s use of the victim’s statements to police.

      In Commonwealth v. Prendes, 97 A.3d 337 (Pa. Super. 2014),

appeal denied, 105 A.3d 736 (Pa. 2014), this Court held that a SOAB expert

opinion falls within the general rules regarding expert witnesses. Id. at 360.

As such, a SOAB expert opinion, under Pa.R.E. 703 and 705, may be based

upon facts or data the expert has been made aware of or personally

observed, so long as experts in the particular field reasonably rely on those

kinds of facts or data in forming their opinion on the subject. The facts and

data need not be admissible for the expert’s opinion to be admitted.

Id. at 361. While inadmissible facts or data relied upon by an expert are

considered to explain the basis for an expert’s opinion and do not constitute

substantive evidence, id. (citing Pa.R.E. 705 and Comment), “an expert’s

opinion, which is rendered to a reasonable degree of professional certainty,

is itself evidence.” Commonwealth v. Fuentes, 991 A.2d 935, 944-45

(Pa. Super. 2010) (en banc), appeal denied, 12 A.3d 370 (2010) (emphasis

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added). As such, the expert’s opinion may be sufficient to support an SVP

determination by the court.      Id. at 944-45; see also Commonwealth v.

Charlton, 902 A.2d 554, 564-65 (Pa. Super. 2006) (expert testimony that

defendant met criteria for classification as SVP clearly and convincingly

supports trial court determination of SVP). Clearly then, the trial court here

erred in     dismissing the expert opinion of the Commonwealth’s witness

largely    because   the   expert’s   opinion   was   predicated   upon   hearsay

statements by the victim to police.

      We also find error in the trial court’s rationale that there was no

evidence the victim’s statements to police are the kind of information upon

which experts would reasonably rely. Trial Court Opinion, 10/22/14, at 7.

An SVP assessment is statutorily defined.        Prendes, 97 A.3d at 360.     By

statute, members of the SOAB can, and routinely do, rely on reports that

contain data that would not be admissible at trial.

      All State, county and local agencies, offices and entities in this
      Commonwealth, including juvenile probation officers, shall
      cooperate by providing copies of records and information as
      requested by the [State Sexual Offender Assessment Board
      (SOAB)] in connection with the court-ordered assessment and
      the assessment requested by the Pennsylvania Board of
      Probation and Parole or the assessment of a delinquent child
      under section 6358 (relating to assessment of delinquent
      children by the State Sexual Offenders Assessment Board). . . .

42 Pa.C.S.A. § 9799.24(c). Information such as arrest warrants, affidavits

of probable cause, police reports, charge sheets, victim’s statements,

polygraph examinations, and written letters are types of information that sex


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offender assessment experts routinely rely upon, and their opinions are

routinely admitted at SVP hearings. Prendes, 97 A.3d at 359-60.

         This is not to say that an assessment expert’s opinion and the facts

relied upon cannot be challenged. Once a SOAB expert testifies to the facts

and data upon which his or her opinion is based,

         [t]hen, the rules of evidence place “the full burden of exploration
         of facts and assumptions underlying the testimony of an expert
         witness squarely on the shoulders of opposing counsel’s cross-
         examination.” See In re D.Y. [34 A.3d 177, 183 (Pa. Super.
         2011), appeal denied, 47 A.3d 848 (Pa. 2012)]. Opposing
         counsel bears the burden of exposing and exploring “any
         weaknesses in the underpinnings of the expert’s opinion.” See
         id.

Id. at 360-61.

         Thus, contrary to the trial court’s belief, expert opinions may be based

on information contained in reports despite issues regarding admissibility at

trial.    The reliability of the information contained in these documents,

however, can be tested at the SVP hearing by defense counsel, but such

challenges involve the weight of the opinion, not its admissibility. Fuentes,

991 A.2d 944-45 (citing Commonwealth v. Feucht, 955 A.2d 377, 382

(Pa. Super. 2008)). Here, Appellee’s cross-examination consisted of merely

asking the expert whether the details of the vaginal penetration, as she

relayed them at the SVP hearing, were described in Appellee’s guilty plea.

The expert replied the transcript of the guilty hearing was not available at

the time of the assessment. Appellee did not ask any further questions. It

would seem, therefore, that Appellee thought he could undermine the

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expert’s testimony by merely pointing out she did not read the transcript of

the guilty plea hearing.         While this may have been helpful, it was not

necessary. In Prendes, this Court quoted with approval the following from

the trial court opinion:

       It was not necessary that [the expert] read the guilty plea
       colloquy and trial testimony before forming her opinion. The
       facts upon which an expert relies can be disclosed either by
       asking the expert to “assume the truth of facts the expert has
       seen or read” or by asking a “hypothetical question.” See
       Pa.R.E. 705, comment.[3]

Prendes, 97 A.3d at 362.           The trial court, here, therefore, erred to the

extent it held the expert impermissibly relied on the victim’s statements to

the police.

       With respect to the Commonwealth’s second issue, the trial court, in

an apparent attempt to buttress its conclusion that the Commonwealth’s

expert’s opinion was fatally flawed due to a failure of the victim to testify at

the SVP proceedings, stated that the Sixth Amendment to the United States

Constitution, as explained in Crawford v. Washington, 541 U.S. 36

(2004), entitled Appellee to confront the victim in the SVP hearing. Citing

Commonwealth v. Curnutte, 871 A.2d 839 (Pa. Super. 2005), the trial

court held this was so because the same constitutional safeguards that apply
____________________________________________


3
  It is worth noting that Appellee here did not present an expert witness to
challenge the Commonwealth expert’s conclusions, or challenge the expert’s
diagnosis except for a brief exchange meant to point out the information
relied upon by the expert was not contained in the transcript of the guilty
plea.



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at trial apply at SORNA hearings. Trial Court Opinion, 10/22/14, at 7. We

disagree.

       The Confrontation Clause in the Sixth Amendment to the United States

Constitution, by its own terms, applies only to defendants in criminal trials.4

See, e.g., Commonwealth v. Wantz, 84 A.3d 324, 337 (Pa. Super. 2014);

see also Barber v. Page, 390 U.S. 719, 725 (1968) (“[R]ight to

confrontation is basically a trial right.        It includes both the opportunity to

cross-examine and the occasion for the jury to weigh the demeanor of the

witness.”) It is also established that an SVP hearing is not a criminal trial; it

is not even a criminal proceeding.             Commonwealth v. Howe, 842 A.2d

436, 445-46 (Pa. Super. 2004); Commonwealth v. Haughwout, 837 A.2d

480, 488 (Pa. Super. 2003); see also Commonwealth v. Masker, 34 A.3d

841, 846-47 (Pa. Super. 2011) (Bowes, J., concurring and dissenting).

Nowhere did the trial court explain how it concluded the protection afforded

under the Confrontation Clause applies to SVP proceedings.5

       To the extent the trial court relied on Curnutte for its conclusion the

Sixth Amendment right to confrontation applies in an SVP proceeding,
____________________________________________


4
  The Confrontation Clause, in relevant part, provides that “in all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const. amend. VI.
5
 The mere fact the Sixth Amendment does not appear to be applicable to
SVP proceedings does not mean that Appellee is not entitled to due process.
This issue, however, was not raised, let alone addressed, by any party
below.



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Curnutte is inapposite. The issue in Curnutte was whether a defendant is

entitled to assistance of a court-appointed psychological expert at an SVP

proceeding when he is unable to procure one on his own. Curnutte, 871

A.3d at 841. This Court held that a defendant has such a right because our

legislature, under SORNA, expressly granted a defendant the right to

counsel and to call an expert witness at an SVP proceeding. We reasoned

that this statutory right to counsel would be rendered meaningless if an

indigent defendant is not provided the tools necessary to counter the

Commonwealth’s evidence.      Id. at 844.   This is especially so where the

central issues in an SVP proceeding are determined by expert testimony. Id.

at 843.   This right to an expert, when a proper showing is made for its

necessity, arises solely by way of a statutory right and not by way of the

United States Constitution.

     Curnutte also is inapposite for another reason.      In Curnutte, as

noted above, we held that an indigent defendant subject to an SVP hearing

under the provisions of Megan’s Law II has a procedural due process right to

a court-appointed psychological expert.     Curnutte, therefore, is a due

process—not a confrontation right—case.     The two concepts may overlap,

but they are not the same.     See Crawford, 541 U.S. at 61; see also

California v. Green, 399 U.S. 149, 172-89 (1970) (Harlan, J., concurring).

Additionally, while this Court did mention in Curnutte, in passing, that the

same safeguards available to defendants at trial are also available to


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defendants in SVP hearings, that phrase is an obiter dictum, not the holding

of the case. As such, Curnutte is not dispositive of the issue raised here.

Finally, the trial court erred in equating the Confrontation Clause with

hearsay. Again, the two concepts are distinguishable. See Green, 399 U.S.

at 155; Commonwealth v. Chmiel, 738 A.2d 406, 420 (Pa. 1999).

      The trial court accordingly erred in its determination that Appellee was

not an SVP to the extent this conclusion was premised upon the inability of

Appellee to confront the victim at his SVP hearing.

      Finally, we address the trial court’s rationale that the absence of some

SVP factors under 42 Pa.C.S.A. § 9799.24 weighed against the finding of

Appellee being a sexually violent predator. Trial Court Opinion, 10/22/14, at

5.   This appears to raise an issue of sufficiency as opposed to one of

admissibility.   We do not need to address a sufficiency issue, given our

disposition on the admissibility issue. However, given we are remanding this

matter to the trial court for further proceedings, we feel compelled to briefly

comment on this matter.

      While we do not question the trial court’s ability to weigh the factors

set forth in 42 Pa.C.S.A. § 9799.24, we note it is improper to consider these

factors “as a checklist where each factor weighs, in some absolute fashion,

either for or against an SVP classification.” Commonwealth v. Meals, 912

A.2d 213, 222 (Pa. 2006).     Although these non-exclusive factors must be

considered, a review of these factors makes clear that all of them may not


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be applicable in every SVP case.               It appears the trial court failed to

appreciate that “the presence or absence of certain factors may simply

suggest the presence, or absence, of one or more particular types of

abnormalities[, and that there is] more than one pathway to an issue of

pathology.” Id.6

        In particular, on the age characteristic of Appellee, the trial court held

that the record did not support the expert’s determination of a substantial

age differential.    The expert stated there was a five-year age differential,

and found this difference to be substantial. The trial court did not question

the expert’s conclusion about the age differential (between five and six

years), only the conclusion that the age differential was substantial.

Specifically, the court noted it was not substantial because the victim was

Appellee’s cousin and Appellee was a minor when the criminal conduct
____________________________________________


6
    Additionally, as we noted in Prendes:

        With regard to the various assessment factors . . ., there is no
        statutory requirement that all of them or any particular number
        of them be present or absent in order to support an SVP
        designation. The factors are not a checklist with each one
        weighing in some necessary fashion for or against SVP
        designation. [Commonwealth v. Brooks, 7 A.3d 852, 863 (Pa.
        Super. 2010)]. Thus, “[t]he Commonwealth does not have to
        show that any certain factor is present or absent in a particular
        case.” Id.

Prendes, 97 A.3d at 358-59. See also N.T. SVP Hearing, 8/29/14, at 10
(the expert testified: “It’s not a plus and minus situation. . . . The [absent]
factors do[] not necessarily mean that that goes against that person being
deemed a sexually violent predator.”).



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started. We are not sure, nor does the trial court provide any explanation,

how the blood relation between the parties or Appellee being a minor when

the criminal conduct started makes the age differential more or less

substantial, and if not substantial, how this affects an SVP determination.

The Crimes Code criminalizes the conduct at issue here if, inter alia, there is

at least a four-year age differential between the parties and the victim is

under the age of 16. See 18 Pa.C.S.A. § 3125(a)(8). It may be that this

age differential weighs differently in SVP determinations, but we fail to see

how this age differential, deemed sufficient for criminal prosecution by our

legislature, could mitigate against an SVP determination. The fact that

Appellee was a minor is not a defense to the offense here.            See id.

Moreover, Appellee pled guilty to engaging in sexual intercourse with his 16-

year old victim when he was 21 years of age. Because we fail to see the

relevance of any blood relation to age, and disagree that a minimum age

differential deemed sufficient for criminal prosecution could mitigate against

an SVP determination, we hold the trial court, to the extent it based its

denial of an SVP determination upon these reasons, abused its discretion.

      Order vacated.   Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.



Judgment Entered.




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Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2015




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