J-S96021-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                    v.

JOSHUA DAVID MILLER

                         Appellant                  No. 702 WDA 2016


                Appeal from the Order Entered April 26, 2016
               In the Court of Common Pleas of Mercer County
                          Criminal Division at No(s):
                          CP-43-CR-0001594-2013



BEFORE: BENDER, P.J.E., BOWES, J., AND SOLANO, J.

MEMORANDUM BY BOWES, J.:                           FILED MARCH 07, 2017

      Joshua David Miller appeals from the trial court’s determination that he

is a sexually violent predator (“SVP”), following remand from this Court for a

new SVP hearing. We affirm.

      On October 24, 2013, Appellant was charged with three counts each of

statutory sexual assault, involuntary deviate sexual intercourse, sexual

assault, and aggravated indecent assault.     These charges stemmed from

allegations that Appellant vaginally raped his female cousin, T.M., when she

was twelve years old and Appellant was seventeen years old, and that

sexual contact continued over the course of the next three years, against

T.M.’s will.
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      On October 16, 2013, Appellant purportedly texted T.M. that he

wanted to have sex with her, and, at that point, T.M. told her mother about

Appellant’s assaults. T.M. and her mother went to the police, who contacted

Appellant. Appellant proceeded to the police station on October 21, 2013.

He allegedly admitted to having inappropriate sexual contact with T.M. after

he reached the age of 18 years, and prior to her reaching the age of 16.

Appellant acknowledged that he had sexual intercourse with her and that he

digitally penetrated the victim’s vagina.

      On March 4, 2014, Appellant pled guilty to a single count of

aggravated indecent assault; the remaining charges were nolle prossed. He

was referred to the Sexual Offender Assessment Board (“SOAB”).             On

August 29, 2014, the court held a hearing and the Commonwealth presented

the testimony of Brenda Manno, a member of the SOAB. Ms. Manno stated

that she performed an assessment on Appellant and concluded he was an

SVP. She recounted her method of evaluation, noting, inter alia, that she

relied on all the records available regarding Appellant, including the

information pertaining to his current offense.     Appellant objected to Ms.

Manno’s recitation of the information surrounding the offense, arguing that

those facts were inadmissible hearsay.      The court overruled the objection,

but nevertheless refused to credit Ms. Manno on the ground that her opinion

was premised upon hearsay statements made by the victim.            The Court

ruled that Ms. Manno’s hearsay-based conclusion was impermissible as it

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was rendered in violation of Appellant’s Sixth Amendment confrontation

clause rights.

      The matter proceeded directly to sentencing, where Appellant was

sentenced to four to ten years imprisonment. The Commonwealth appealed

and    challenged     the    court’s    SVP    determination;   we    reversed.

Commonwealth v. Miller, 125 A.3d 450 (Pa.Super. 2015) (unpublished

memorandum).        We first held that the “trial court here erred in dismissing

the expert opinion of the Commonwealth’s witness [,Brenda Manno,] . . .

because the expert’s opinion was predicated upon hearsay statements by

the victim to police.”   Id. at 6.     Rather, the expert was permitted to rely

upon the victim’s hearsay statements in rendering her opinion that Appellant

was an SVP.      In addition, we also ruled that the practice did not violate

Appellant’s Sixth Amendment right to confront witnesses against him,

holding: “The trial court . . . erred in its determination that [Appellant] was

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

[Appellant] to confront the victim at his SVP hearing.” Id. at 11.       Hence,

the matter was remanded for a new SVP hearing.

      The sentencing court conducted that hearing on April 26, 2016.         At

that time, Ms. Manno again opined that Appellant was an SVP. At no point

during Ms. Manno’s lengthy testimony did Appellant raise any objection.

During cross-examination, Appellant established that the law requires a

person adjudicated as an SVP to undergo counseling, that Ms. Manno

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conducted SVP counseling, and that she made a profit from that activity.

During argument, Appellant raised one contention, that Ms. Manno’s

testimony not be credited because “there is a possibility that we do not have

an unbiased opinion here considering that . . . there would be an incentive

to find somebody to be a sexually violent predator.” N.T. SVP Determination

Hearing, 4/26/16, at 30.

      The Commonwealth countered that there was no bias since it

established that, in two-thirds of the assessments that Ms. Manno

conducted, she concluded that the person was not an SVP. After expressing

its disagreement with our holding during the prior appeal, the court

determined that Appellant was an SVP. Appellant filed this appeal, raising

one issue: “I. Whether the Trial Court erred by determining that Miller was

an SVP in violation of his right to procedural due process when it found that

the   Commonwealth met its burden under           42   Pa.C.S.A. §   9799.2.”

Appellant’s brief at 4.

      In this appeal, Appellant contends that his SVP adjudication is infirm

due to a violation of his due process rights under the Fourteenth Amendment

of the United States Constitution and Article I, Section 9 of the Pennsylvania

Constitution. We review a challenge to an SVP determination

      [I]n 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



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      convincing as to enable [the trier of fact] to come to a clear
      conviction, of the truth of the precise facts [at] issue.

Commonwealth v. Prendes, 97 A.3d 337, 355-356 (Pa.Super. 2014). The

scope of review is plenary.    Id. at 356.   Moreover, “an expert’s opinion,

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

evidence.” Id. (emphasis in original).

      Before we proceed to the merits of Appellant’s claimed error, we must

first determine whether the issue was properly preserved for review.

Although Appellant presented his due process challenge in his 1925(b)

statement of errors complained of on appeal, and argued his position in his

brief, he did not make a timely and specific objection to Ms. Manno’s

testimony during the April 26, 2016 SVP hearing. Hence, we find this issue

waived. Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa.Super. 2016)

(“the failure to make a timely and specific objection before the trial court at

the appropriate stage of the proceedings will result in waiver of the issue.”);

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal”).

      Assuming, arguendo, that this matter was properly before us,

Appellant would not be entitled to relief.         The Fourteenth Amendment

provides, in relevant part, “nor shall any State deprive any person of life,

liberty, or property, without due process of law,” and protects “the individual

against arbitrary action of government.”     Commonwealth v. Turner, 80



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A.3d 754, 763 (Pa. 2013); U.S. CONST. amend. XIV § 1. Likewise, Article I,

Section 9 of the Pennsylvania Constitution assures a criminal defendant the

protection of due process of law.        Turner, supra at 363.        Moreover,

“[t]hese two provisions are largely coextensive.” Id.

      Appellant challenges the court’s ruling under the rubric of procedural

due process.      Procedural due process prohibits the government from

“depriving individuals of life, liberty, or property, unless it provides the

process that is due.”    Id. at 364.   While our Court has not established a

precise definition of due process, “the basic elements or procedural due

process are adequate notice, the opportunity to be heard, and the chance to

defend oneself before a fair and impartial tribunal having jurisdiction over

the case.” Id. (citation omitted). As such, we utilize a two-step approach to

analyzing procedural due process questions: “the first asks whether there is

a life, liberty, or property interest that the state has interfered with; and the

second examines whether the procedures attendant to that deprivation were

constitutionally sufficient.” Id.

      Essentially, Appellant contends that the factual basis for his plea

differs from the information employed by Ms. Manno in rendering her expert

opinion.    That is, the factual foundation supporting Appellant’s plea

established only that he engaged in improper sexual contact with his




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underage cousin on a single occasion. However, Ms. Manno, in opining that

Appellant exhibited unspecified paraphilic disorder,1 determined that he had

made inappropriate sexual contact with his cousin for a period extending

beyond six months.          Ms. Manno reached this conclusion by reviewing

Appellant’s criminal record, which included statements made by T.M.

attesting to the frequency and duration of Appellant’s sexual contact with

her, as well as statements by Appellant verifying those allegations.      Since

those statements were not facts of record, Appellant reasons that Ms.

Manno’s reliance upon them violates his due process.

       As this Court held in Prendes, supra, an SOAB expert opinion,

pursuant to 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

that particular field reasonably rely on those kinds of facts or data in forming

their opinion. Prendes, supra at 360-361 (emphasis added); Pa.R.E. 703;

Pa.R.E. 705. We observed that “the facts and data need not be admissible
____________________________________________


1
   After a defendant has been evaluated by an SOAB board member
according to the factors provide in 42 Pa.C.S. § 9799.24(b), the
Commonwealth must prove that the defendant has been convicted of a
sexually violent offense as set forth in 42 Pa.C.S. § 9799.14, and that the
individual has a “mental abnormality or personality disorder that makes
[him] likely to engage in predatory sexually violent offenses.”
Commonwealth v. Prendes, 97 A.3d 337, 357-358 (Pa.Super. 2014)
(citation omitted). Since Appellant’s guilty plea to aggravated indecent
assault is enumerated as a Tier III sexual offense pursuant to section
9799.14, Ms. Manno’s testimony was offered to prove he suffered from such
a mental abnormality.



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for the expert’s opinion to be admitted.” Prendes, supra at 361. Indeed,

otherwise inadmissible facts reasonably relied upon by an expert to explain

the basis of her opinion do not constitute substantive evidence. Id.; Pa.R.E.

705 and Comment.

     In the SVP setting, that the factual basis of an expert’s testimony is

not presented as substantive evidence is determinative. As noted above, an

expert’s    testimony,   when   provided   within   a    reasonable   degree    of

professional certainty, is the relevant evidence.       Prendes, supra at 356.

Furthermore, hearsay is defined as a statement that

  (1)      the declarant does not make while testifying at the current
           trial or hearing; and

  (2)      a party offers in evidence to prove the truth of the matter
           asserted in the statement.

Pa.R.E. 801(c). In the context of an SVP hearing, the judge is not tasked

with evaluating the veracity of the facts and data underlying the expert’s

testimony. Moreover, those facts are not being offered for the truth of the

matter asserted. Instead, they are presented solely to supply the basis for

the expert’s opinion. That is, the facts and data are offered merely to show

what information the expert relied upon in articulating her opinion. Hence,

that background information cannot properly be considered hearsay.

     Nevertheless, we do not simply take experts at their word.                The

dictates of the due process clause are fulfilled with regard to expert

testimony by procedures which allow opposing parties to introduce expert

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witnesses of their own, and to cross-examine opposing experts to test the

viscosity of their opinions.     Thus, the defendant is furnished ample

opportunity to defend himself against that testimony. Turner, supra.

     Based on the foregoing, we find that, had this issue been properly

preserved below, the process provided to a defendant during an SVP hearing

is sufficient to protect whatever liberty interest may be infringed by an

affirmative SVP determination.      Instantly, Appellant was afforded the

opportunity to challenge Ms. Manno’s expert opinion by offering expert

testimony of his own, or to attempt to undermine that opinion on cross-

examination. Although Appellant did not avail himself of an expert witness

herein, he did have the opportunity to cross-examine Ms. Manno. Appellant

did so, and focused that assault on Ms. Manno’s alleged bias.        N.T. SVP

Determination Hearing, 4/26/16, at 23-28. He raised only one challenge to

the facts underlying Ms. Manno’s assessment by eliciting testimony that if it

were assumed that Appellant had only one sexual encounter with T.M., then

he would not have fulfilled the criteria for paraphilic disorder.   Id. at 28.

The trial court was free to weigh this answer in determining Ms. Manno’s

credibility. Hence, the SVP proceeding met the standards enunciated by the

Due Process Clauses of the Fourteenth Amendment, and Article I, Section 9

of the Pennsylvania Constitution. Turner, supra.




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      Nonetheless, Appellant failed to preserve his challenge to Ms. Manno’s

testimony on the grounds that it was based on impermissible hearsay in

violation of his right to due process. Accordingly, we find his issue waived.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/7/2017




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