J-S60039-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    AARON M. NAZARIO                           :
                                               :
                      Appellant                :   No. 436 WDA 2017

                    Appeal from the Order February 14, 2017
                In the Court of Common Pleas of McKean County
                           Criminal Division at No(s):
                            CP-42-CR-0000120-2016


BEFORE:      OLSON, DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                      FILED SEPTEMBER 18, 2017

       Appellant Aaron M. Nazario appeals from the February 14, 2017, Order

entered in the Court of Common Pleas of McKean County classifying him as a

sexually violent predator (“SVP”) under the Sex Offender Registration and

Notification Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.10–9799.41. We affirm.

       On May 26, 2016, Appellant entered into a negotiated guilty plea to a

single count of indecent assault of a person less than 13 years of age, a

misdemeanor of the first degree.1 As part of his plea, the Commonwealth

dismissed the remaining charges set forth in the Criminal Information.
____________________________________________


1
 18 Pa.C.S.A. § 3126(a)(7). The victim was born in 2005 and the offense
date occurred sometime within 2012-2014 when the victim was between the
ages of seven and nine. N.T. Sentencing, 2/14/17, at 9; N.T. SVP Hearing,
12/23/16, at 54. The victim’s mother was appellant’s paramour. N.T. SVP
Hearing, 12/23/16, at 32.


____________________________________
*    Former Justice specially assigned to the Superior Court.
J-S60039-17



Pursuant to the plea, Appellant was sentenced to eighteen (18) months to

thirty-six (36) months in prison with credit for time served of 126 days.

       On December 23, 2016, a Sexually Violent Predator (SVP) Hearing was

held following which the trial court determined Appellant met the criteria to

be classified as an SVP and would be required to be a lifetime registrant.2

____________________________________________


2
 This Court has explained the process by which a trial court makes a SVP
determination as follows:

       After a person has been convicted of an offense listed in [42
       Pa.C.S.A. § 9799.14], the trial [court] then orders an
       assessment to be done by the [SOAB] to help determine if that
       person should be classified as a[n SVP. An SVP] is defined as a
       person who has been convicted of a sexually violent offense ...
       and who [has] a mental abnormality or personality disorder that
       makes the person likely to engage in predatory sexually violent
       offenses. In order to show that the offender suffers from a
       mental abnormality or personality disorder, the evidence must
       show that the defendant suffers from a congenital or acquired
       condition 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.
       Moreover, there must be a showing that the defendant's conduct
       was predatory.... Furthermore, in reaching a determination, we
       must examine the driving force behind the commission of these
       acts, as well as looking at the offender's propensity to reoffend,
       an opinion about which the Commonwealth's expert is required
       to opine. However, the risk of re-offending is but one factor to
       be considered when making an assessment; it is not an
       independent element.

Commonwealth v. Hollingshead, 111 A.3d 186, 189–90 (Pa.Super.
2015), appeal denied, 633 Pa. 763, 125 A.3d 1199 (2015) (citation
omitted). In addition,

(Footnote Continued Next Page)


                                           -2-
J-S60039-17



      Appellant filed a timely notice of appeal on March 14, 2017, and the

trial court issued its Order pursuant to Pa.R.A.P. 1925(b) on March 20, 2017.

Appellant filed his Statement of Errors Complained of on Appeal on March

24, 2017, wherein he challenged the admissibility of testimony presented by

Sexual Offenders Assessment Board (SOAB) Investigator Supervisor Paul

Everett and SOAB expert Brenda Manno. Specifically, Appellant asserted the

following:


      1.   [Appellant] appeals whether the trial [c]ourt erred in
      admitting the investigation report of Paul Everett at the hearing
      to determine whether [Appellant] meets the criteria as a
      sexually violent predator on December 23, 2016.
                       _______________________
(Footnote Continued)

      [w]hen performing an SVP assessment, a mental health
      professional must consider the following 15 factors: whether the
      instant offense involved multiple victims; whether the defendant
      exceeded the means necessary to achieve the offense; the
      nature of the sexual contact with the victim(s); the defendant's
      relationship with the victim(s); the victim(s)' age(s); whether
      the instant offense included a display of unusual cruelty by the
      defendant during the commission of the offense; the victim(s)'
      mental capacity(ies); the defendant's prior criminal record;
      whether the defendant completed any prior sentence(s);
      whether the defendant participated in available programs for
      sexual offenders; the defendant's age; the defendant's use of
      illegal drugs; whether the defendant suffers from a mental
      illness, mental disability, or mental abnormality; behavioral
      characteristics that contribute to the defendant's conduct; and
      any other factor reasonably related to the defendant's risk of
      reoffending. See 42 Pa.C.S.A. § 9799.24(b).

Id. at 190.




                                            -3-
J-S60039-17


          a. [Appellant] asserts the report submitted by Paul Everett
             included allegations from the initial police report,
             including witness statements and facts involving
             charges for which [Appellant] was not convicted, and
             that no review of the actual transcript of the guilty plea,
             which included “agreed upon facts” to substantiate the
             guilty plea, was considered.
          b. [Appellant] argues that while the determination of
             whether [Appellant] meets the criteria to be classified
             as a sexually violent predator is a collateral
             consequence to a conviction for a sexually violent
             offense, that the rules of evidence and procedural rules
             apply to this proceeding, and that [Appellant] was
             prejudiced by the [c]ourt’s consideration of facts and
             statements, admitted through the report of Paul Everett
             and subsequent testimony of Brenda Manno, which
             were either irrelevant to the charges for which
             [Appellant] was convicted, or sometimes wholly
             inconsistent with facts of record through the guilty plea
             or the trial transcript of another matter, which was also
             considered by the [c]ourt in making its ruling.

     2.    [Appellant] appeals whether the [c]ourt erred in permitting
     Brenda Manno to testify and render an expert opinion with
     regard to [Appellant’s] classification as a sexually violent
     predator, when the materials relied upon by Ms. Manno in
     reaching her opinion were inaccurate and/or inconsistent with
     the facts of record in [Appellant’s] matters pending before the
     [c]ourt.

          a. [Appellant] asserts that Ms. Manno’s opinion, which
             included consideration of the nature of the offense(s),
             whether the victim(s) were known to [Appellant], and
             several other considerations as outlined on the record
             at the time of hearing on December 23, 2016, was
             based on facts that were purely hearsay and not subject
             to confrontation or credibility determinations by Ms.
             Manno or the [c]ourt, and that were sometimes
             inconsistent with either the trial record from
             [Appellant’s] prior case or the facts agreed upon
             through entry of a plea for the matter presently before
             the [c]ourt.




                                   -4-
J-S60039-17


      3.   [Appellant] appeals the [c]ourt’s ruling, by Order dated
      December 23, 2016, which found that the Commonwealth had
      presented by clear and convincing evidence that [Appellant]
      meets the criteria as a sexually violent predator.

            a. [Appellant] asserts that Ms. Manno’s prior assessment
            of [Appellant] in another matter, where she indicated that
            he did not meet the criteria as a sexually violent predator,
            calls into significant question whether the Commonwealth
            could prove that [Appellant] had engaged in predatory
            behavior or that he suffers from a mental abnormality,
            which would be necessary in order to find that [Appellant]
            meets the criteria to be classified as a sexually violent
            predator.

Statement of Errors Complained of on Appeal, filed 3/24/17, at ¶¶ 1-3.

      In his appellate brief, Appellant presents the following issue for our

review:


      (1)   Did the trial court err in finding, by clear and convincing
            evidence, that Appellant meets the criteria to be classified
            as a sexually violent predator?

Brief for Appellant at 4.

      A challenge to a trial court's SVP designation is a challenge to the

sufficiency of the evidence, for which our standard of review is de novo and

our scope of review is plenary. Commonwealth v. Meals, 510 Pa. 110,

119, 912 A.2d 213, 218 (2006). When reviewing a trial court's SVP

determination, we must view the evidence in a light most favorable to the

Commonwealth and may not re-weigh the evidence or substitute our

judgment for that of the trial court. Id. The question for the trial court is

whether the Commonwealth's evidence establishes that the defendant has a

mental abnormality or personality disorder that makes him or her likely to

                                    -5-
J-S60039-17


engage in predatory sexually violent offenses. Commonwealth v. Brooks,

7 A.3d 852, 863 (Pa.Super. 2010). We will reverse an SVP determination

only if the Commonwealth did not present “clear and convincing evidence

that each element of the statute has been satisfied.” Commonwealth v.

Baker, 621 Pa. 401, 24 A.3d 1006, 1033 (Pa.Super. 2011), aff'd, 78 A.3d

1044 (Pa. 2013).

       Appellant does not dispute that his guilty plea to a charge of Indecent

Assault under 18 Pa.C.S.A. 3126(a)(7) constitutes a conviction of a sexually

violent offense under 42 Pa.C.S.A. § 9799.14.         Brief for Appellant at 17.

Instead, “Appellant focuses his argument on the assertion that the SOAB

completed [its] investigation and assessment based solely on the unproven

allegations contained in the initial police filings and reports, rather than in

review of actual facts of record proven at trial or in a guilty plea transcript. .

. .”   Brief for Appellant at 19 (footnote omitted).         The focal point of

Appellant’s argument essentially challenges the admissibility of Mr. Everett’s

report and of Ms. Manno’s expert opinion at the SVP hearing.

       “To preserve a claim of error for appellate review, a party must make

a specific objection to the alleged error before the trial court in a timely

fashion and at the appropriate stage of the proceedings; failure to raise such

objection   results   in   waiver   of    the   underlying   issue   on   appeal.”

Commonwealth v. Akbar, 91 A.3d 227, 235 (Pa.Super. 2014), reversed

on other grounds, 111 A.3d 168 (Pa. 2015) (citations omitted); Pa.R.A.P.


                                         -6-
J-S60039-17


302(a) (Issues not raised before the trial court are waived and cannot be

advanced for the first time on appeal). At the SVP hearing, Appellant did not

specifically object to the introduction into evidence of Mr. Everett’s report, to

Mr. Everett’s testimony with regard thereto, or to Ms. Manno’s testifying as

an expert witness.       To the contrary, Appellant affirmatively stated “no

objection” to both the admissibility of the investigative materials and report

Mr. Everett sent to Ms. Manno and to his ensuing testimony.             N.T. SVP

Hearing, 12/23/16, at 10-13, 15. In addition, Ms. Manno’s curriculum vitae

was admitted into evidence without objection, and the parties stipulated that

Ms. Manno was qualified to offer an expert opinion as to whether Appellant

met the criteria of a SVP. Id. at 28. Also, Appellant asked to have admitted

as “Defense Exhibit Number A” the initial report Ms. Manno had prepared in

June of 2016 wherein she did not find Appellant to be an SVP. Id. at 41.

      Because he failed to raise specific objections regarding the foregoing

before the trial court, Appellant cannot now complain that the court erred in

admitting the evidence. Akbar, supra. However, Appellant did lodge a

“blanket   objection”    regarding   Ms.   Manno’s   anticipated   reliance   upon

“hearsay and unproven allegations in making her assessment based on Mr.

Everett’s testimony as to what he forwarded her.”            N.T. SVP Hearing,

12/23/16, at 28.        In addition, Appellant objected to the admission of

“Commonwealth’s Exhibit 4,” Ms. Manno’s second report which included

information provided to her by Mr. Everett, on the grounds that “she


                                       -7-
J-S60039-17


testified about her reliance of [sic] hearsay to render the opinion.”   Id. at

39-40. To the extent these objections have preserved Appellant’s challenge

to the trial court’s admission into evidence of Ms. Manno’s second report and

her accompanying opinion based upon it and rendered to a reasonable

degree of professional certainty that he is an SVP, we note that Ms. Manno’s

opinion constitutes evidence. “[A] Board report or opinion that the individual

has an abnormality indicating the likelihood of predatory sexually violent

offenses is itself evidence.   Also, while a defendant is surely entitled to

challenge such evidence by contesting its credibility or reliability before the

SVP court, such efforts affect the weight, not the sufficiency of the

Commonwealth's case.       Accordingly, they do not affect our sufficiency

analysis.” Commonwealth v. Feucht, 955 A.2d 377, 382 (Pa.Super. 2008)

(citations omitted). Furthermore, “[SORNA] does not limit the expert’s

consideration of information only to that admitted at trial or at the guilty

plea proceedings.”     Commonwealth v. Prendes, 97 A.3d 337, 360

(Pa.Super. 2014).

      At the SVP hearing, Ms. Manno testified that when she completed her

initial evaluation of Appellant in June of 2016, he had a prior criminal

conviction from 2015 for his sexual assault of a twenty-three year old victim.




                                     -8-
J-S60039-17


N.T. SVP Hearing, 12/23/16, at 38.3 Ms. Manno determined that although

Appellant met the definition of predatory, she did not find him to be an SVP

in her initial report “because he lacked the mental abnormality or personality

diagnosis at that time” as “there was no time span of a period of six months

or more where he had engaged in any behavior sexually.” Id., at 38-39.

Notwithstanding, at the time of the SVP hearing on December 23, 2016, and

after considering the statutory factors following Appellant’s guilty plea

herein, she opined he did meet that criteria. Id. at 39, 49. Appellant did

not present expert testimony to contest Ms. Manno’s conclusions, although

he thoroughly cross-examined her regarding her assessment and in doing so

highlighted her contrary findings in her initial report. Id. at 40-54.

       In Prendes, this Court stated that “[o]nce expert testimony has been

admitted, the rules of evidence then place the full burden of exploration of

facts and assumptions underlying the testimony of an expert witness

squarely on the shoulders of opposing counsel[],” who “bears the burden of

exposing and exploring “‘any weaknesses in the underpinnings of the

expert’s opinion.’” Id. at 358 (citation omitted). Relying upon that decision,

the trial court reasoned herein as follows:


____________________________________________


3
 Ms. Manno explained that the victim had been diagnosed with Asperger’s
and had “mental limitations that made her more vulnerable.” Id. at 33.
She also acknowledged that Appellant had a juvenile criminal history and a
prior, adult criminal history. Id. at 34.



                                           -9-
J-S60039-17


            Mr. Paul Everett (Tr. pp. 15-27) gathered various reports,
     including [] Appellant’s criminal complaint with affidavit of
     probable cause in the current case and the same information
     from Appellant’s 210 of 2015 case. He did not analyze the
     documents but simply gathered the information that he could
     find available and, in the course of his work for the Board,
     passed these on to Ms. Manno to use in making her assessment.
     She relied on the information provided to her and testified as to
     the sources of her information on which her opinion was formed.
     She testified that she made specific findings regarding all of the
     criteria set forth in “Title 42, Section 9799.24” (Tr. pg. 31, lines
     11-12). She explained that she has to evaluate all the factors
     but that all the factors need not be met in order for someone to
     be classified as an SVP. (Tr. pg. 31, lines 14-pg. 32, lines 1-
     6)[.] This comports with the case law on SVP evaluations.
     Prendas, Supra. at 358, 359. Her qualifications as stated on the
     record (Tr. pg. 29, lines 3-24) enabled her to testify as an
     expert. . . .
            This court need not argue the issue of whether Ms. Manno
     could change her opinion from an earlier assessment on [ ]
     Appellant in which she found him not to be an SVP. As stated
     above, she is required to base her opinion on information
     provided to her including the current and most recent jury
     verdict of guilty of a particular offense. Obviously she had
     additional information in 2016, including the history of the
     previous non-SVP offense which she reviewed prior to making [ ]
     Appellant’s current evaluation. On cross-examination defense
     counsel thoroughly interrogated her on this issue and she
     provided him with an explanation as to how her testimony was in
     accord with the permitted methods of evaluation. There is no
     foundation for [ ] Appellant’s argument that, just because he
     was found not to be an SVP in 2015 that he could be shielded
     from being found to be an SVP in 2016, one year later.

Trial Court Opinion, filed 5/12/17, at 3-4 (unnumbered).

    Our review of the record substantiates the trial court’s determination the

Commonwealth presented clear and convincing evidence that Appellant met

the statutory criteria to be classified as an SVP under SORNA.      Appellant,

essentially asks this Court to reweigh the evidence and find in his favor,


                                    - 10 -
J-S60039-17


which we cannot do.    See    Commonwealth v. Meals, 590 Pa. 110, 912

A.2d 213 (2006) (holding this Court erred in reweighing the SVP evidence

presented to the trial court to give more weight to factors that were absent

than to those found and relied upon by the trial court).

    Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/18/2017




                                    - 11 -
