Com. v. Aumick, J.

2022 Pa. Super. 33

• Court: Superior Court of Pennsylvania
• Decided: February 23, 2022
• Docket: 1529 EDA 2020
• Status: Published

Opinion

J-A24016-21

2022 PA Super 33

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN R. AUMICK : : Appellant : No. 1529 EDA 2020

Appeal from the Judgment of Sentence Entered July 13, 2020 In the Court of Common Pleas of Pike County Criminal Division at No(s): CP-52-CR-0000184-2019

BEFORE: LAZARUS, J., DUBOW, J., and PELLEGRINI, J.*

OPINION BY PELLEGRINI, J.: FILED FEBRUARY 23, 2022

John R. Aumick (Aumick) entered a guilty plea to one count of

Corruption of Minors, a felony of the third-degree, admitting that he

inappropriately touched his fourteen-year-old step-granddaughter “in a sexual

manner.” He was sentenced to a prison term of 18 months to 5 years. This

appeal stems from the trial court’s collateral civil finding1 designating him

under the Sex Offender Registration and Notification Act (SORNA) 2 as a

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1An SVP designation and its lifetime registration requirement are collateral consequences of a criminal conviction. See Commonwealth v. Lacombe, 234 A.3d 602, 626 (Pa. 2020); Commonwealth v. Butler, 226 A.3d 972, 993 (Pa. 2020).

2 42 Pa.C.S. §§ 9799.10–9799.41. J-A24016-21

sexually violent predator (SVP), making him subject to lifetime registration

requirements. We reverse.

I.

SORNA mandates that an offender convicted of a sexually violent

offense must be assessed to determine whether he should be designated as

an SVP. The court must find whether the offender has a mental abnormality

or personality disorder that makes the individual likely to engage in predatory

sexually violent offenses. See 42 Pa.C.S. § 9799.12. An act is considered

“predatory” if it is “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.” Id.

Under SORNA, the process to determine whether an individual is an SVP

is initiated when the trial court orders that the individual convicted of a

sexually violent offense be assessed by the Sexual Offenders Assessment

Board (SOAB). 42 Pa.C.S. § 9799.24(a). Following the entry of such an order,

the SOAB is responsible for conducting the assessment as to whether the

individual has a mental abnormality or personality disorder making the

individual likely to engage in predatory sexually violent offenses so that person

should be classified as an SVP. Id., § 9799.24(b). The assessment must

consist of the following 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);

-2- J-A24016-21

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.

Commonwealth v. Hollingshead, 111 A.3d 186, 189-90 (Pa. Super. 2015)

(citation and brackets omitted); see also 42 Pa.C.S. § 9799.24(b)(1)-(4).

After the SOAB completes its assessment, 42 Pa.C.S. § 9799.24(e) sets

forth the process to designate the offender as an SVP. That provision requires:

(1) A hearing to determine whether the individual is a sexually violent predator shall be scheduled upon the praecipe filed by the district attorney. The district attorney upon filing a praecipe shall serve a copy of the praecipe upon defense counsel together with a copy of the report of the board.

(2) The individual and district attorney shall be given notice of the hearing and an opportunity to be heard, the right to call witnesses, the right to call expert witnesses and the right to cross-examine witnesses. In addition, the individual shall have the right to counsel and to have an attorney appointed to represent the individual if the individual cannot afford one. If the individual requests another expert assessment, the individual shall provide a copy of the expert assessment to the district attorney prior to the hearing.

(3) At the hearing prior to sentencing, the court shall determine whether the Commonwealth has proved by clear and convincing

-3- J-A24016-21

evidence3 that the individual is a sexually violent predator. (emphasis added).

42 Pa.C.S. § 9799.24(e)(emphasis added).

The “clear and convincing” evidence standard requires evidence that is

“so clear, direct, weighty and convincing” as to enable the factfinder to reach

“a clear conviction, without hesitancy, of the truth of the precise fact at issue.”

Commonwealth v. Haughwout, 837 A.2d 480, 484 (Pa. Super. 2003). The

General Assembly imposed this standard to protect due process rights. See

Commonwealth v. Williams, 557 Pa. 285, 733 A.2d 593, 605 (1999) (“This

Court has mandated an intermediate standard of proof—‘clear and convincing

evidence’—when the individual interests at stake in a state proceeding are

both ‘particularly important’ and ‘more substantial than mere loss of money.’

Notwithstanding ‘the state’s civil labels and good intentions,’ the Court has

deemed this level of certainty necessary to preserve fundamental fairness in

a variety of government-initiated proceedings that threaten the individual

involved with ‘a significant deprivation of liberty’ or ‘stigma.’ ”).

At an SVP hearing, the Commonwealth must show that:

• the offender suffers from a mental abnormality or personality disorder, that affects the emotional or volitional capacity of the person in a manner that predisposes that person

3Clear and convincing evidence has been defined as evidence that is so “clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue.” In re B.J.Z., 207 A.3d 914, 921 (Pa. Super. 2019) (citation omitted).

-4- J-A24016-21

to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons.

• a showing that the offender’s conduct was predatory.

• the offender’s propensity to reoffend, an opinion about which the Commonwealth’s expert is required to opine.

See Commonwealth v. Stephens, 74 A.3d 1034, 1038–1039 (Pa. Super.

2013); Commonwealth v. Hollingshead, 111 A.3d 186, 189–90 (Pa. Super.

2015).

II.

In this case, after his guilty plea, the trial court ordered that Aumick be

assessed by the SOAB to determine whether he should be designated as an

SVP. In its report, prepared by Mary E. Muscari, Ph.D., SOAB concluded that

Aumick met the SVP designation criteria. The report was forwarded to the

Commonwealth, who praeciped for a hearing and forwarded a copy of the

report to Aumick. The SOAB assessment is akin to a complaint or a charging

document in that it provides the requisite notice to the offender of the reasons

that the Commonwealth contends that the offender meets the SVP criteria.

While introduced as part of the record, other than establishing that the

statutory preconditions were satisfied, it has no evidentiary value. Proof of

meeting the designation criteria must be established at the hearing by clear

and convincing evidence.

Here, the Commonwealth attempted to prove its case based solely on

Dr. Muscari’s testimony. She testified that in arriving at her opinion that

-5- J-A24016-21

Aumick met the SVP designation, as well as in preparation of the assessment,

she relied exclusively on documents submitted by third parties, i.e., the

transcript of the preliminary hearing, the criminal complaint, the affidavit of

probable cause, the criminal information and the child protective services

investigation report. She testified generally that when a defendant pleads

guilty to a specific sexual offense, she would formulate her opinion based not

only on the offense to which he pled guilty, but also the allegations of the

victim as recorded in collateral materials.

Dr. Muscari reviewed those collateral materials and opined that Aumick

met the criteria for designation as an SVP because he has a pedophilic

disorder, he met the predatory criterion because he was engaged in conduct

with his step-granddaughter, and he was likely to reoffend despite a lack of

any prior sexual crimes. After the Commonwealth completed direct

examination, the SOAB assessment report was offered into evidence without

objection. See Supplemental Reproduced Record, at 102.

On cross-examination, Dr. Muscari conceded that she did not interview

Aumick, the victim or watch the victim’s interview that was offered at the

preliminary hearing. She also conceded that her assessment and opinion were

based solely on allegations to which Aumick did not plead guilty. See id. at

104-05.

Throughout the hearing, Aumick’s counsel repeatedly objected to Dr.

Muscari’s opinion because it was based on unproven allegations to which

-6- J-A24016-21

Aumick did not plead guilty. Counsel stressed that the trial court had to “treat

the consequences [of the conviction] based on what he pled to, not what he

was alleged of doing.” Id. at 112.

At the conclusion of the SVP hearing, the trial court found that alleged

hearsay evidence regarding unproven allegations could be used by Dr. Muscari

to arrive at her opinion that Aumick met the criteria to be an SVP, stating:

But the few that I have had and looking at this case leads the Court to the conclusion that the Commonwealth has met its burden of proof by clear and convincing evidence through the testimony offered here today that the Defendant is a sexually violent predator. The Court briefly notes that the Guilty Plea Colloquy which was entered in this matter admits to Count 4, Corruption of Minors, a Felony of the Third Degree. That in essence says over a six-year time period the Defendant engaged in a course of corruption against the minor child, which included sexual touching of her private areas occurring at two separate residences which would make that between the ages of six to twelve years of age.

The witness Dr. Muscari had acknowledged that the offense that the Defendant pled to was a Corruption of Minors Charge. The factual basis for that Charge as just indicated by the Court included a course of sexual touching of private areas.4 The Court does find the testimony of the Commonwealth to meet the clear and convincing evidence standard and with that finding we’ll make a determination [that he be designated as an SVP].

Id. at 115.

4 As previously noted, Dr. Muscari stated that she based her assessment solely on the unproven allegations. At the plea hearing, Aumick did not recount any details of the offense to which he pled guilty. 42 Pa.C.S. § 9799.24 provides that the assessment is to be made based on the offense to which the offender was convicted.

-7- J-A24016-21

Immediately following the hearing, the trial court designated Aumick as

an SVP. Counsel then timely appealed and filed a 1925(b) statement raising

the following issues:

1. The trial court erred and abused its discretion by finding that Aumick was a Sexually Violent Predator based on alleged incidents to which he did not plead guilty nor of which he was convicted.

2. The trial court erred and abused its discretion by finding that Aumick was a Sexually Violent Predator based entirely on hearsay in the form of the statements of the alleged Victim who never testified at any proceeding.

III.

Just as he did before the trial court, Aumick now contends that his SVP

designation should be reversed because Dr. Muscari’s expert opinion was

based on unproven hearsay allegations contained in collateral third-party

documents.

The use of hearsay alone to support a determination was recently

addressed by our Supreme Court in Commonwealth v. McClelland, 233

A.3d 717 (Pa. 2020). In that case, the court approved of the holding in

Commonwealth ex rel. Buchanan v. Verbonitz, 525 Pa. 413, 581 A.2d

172 (1990), that hearsay evidence alone is insufficient to make out a prima

facie case at a preliminary hearing. The McClelland Court reaffirmed that

hearsay alone is insufficient because “fundamental due process requires that

no adjudication be based solely on hearsay evidence.” See McClelland, 233

A.3d at 721 (citations omitted).

Further, in Verbonitz, our Supreme Court cited with approval Justice

-8- J-A24016-21

Flaherty’s concurring opinion in Unemployment Compensation Board of

Review v. Ceja, 427 A.2d 631, 647 (Pa. 1981), a case evaluating the use of

the “legal residuum” rule,5 which provides that hearsay cannot be used to

support a finding at an administrative hearing unless it is corroborated by

direct evidence:

As Justice Flaherty stated in his concurring opinion in [Ceja, 427 A.2d at 647], “[f]undamental due process requires that no adjudication be based solely on hearsay evidence.” If more than “rank hearsay” is required in an administrative context, the standard must be higher in a criminal proceeding where a person may be deprived of his liberty. The testimony of a witness as to what a third party told him about an alleged criminal act is clearly inadmissible hearsay, Commonwealth v. Maybee, 429 Pa. 222, 239 A.2d 332 (1968), Commonwealth v. Whitner, 444 Pa. 556, 281 A.2d 870 (1971), and thus, does not constitute legally competent evidence. In this case the Commonwealth has failed to establish prima facie that a crime has been committed and that [the defendant] committed that crime.

Verbonitz, 581 A.2d at 174.

If hearsay alone is insufficient to make out a prima facie case at a

preliminary hearing, then the use of unproven allegations alone to designate

a person as an SVP is also improper. Where a defendant has no prior or

subsequent opportunity to disprove the hearsay allegations, they cannot

5 The “legal residuum” rule, also known as the “Walker Rule” in Pennsylvania, provides that “unobjected to hearsay evidence can be relied on to support a finding if it is corroborated by other competent evidence, while objected to hearsay evidence can never be relied on to support a finding.” Walker v. Unemployment Comp. Board of Review, 367 A.2d 366, 370 (Pa. 1976). (citations omitted) (emphasis added.)

-9- J-A24016-21

amount to clear and convincing evidence upon which an SVP determination

must be made.

Indeed, it has long been recognized that hearsay statements do not

become more credible simply because an expert has relied on them in

formulating an opinion:

The facts which the expert assumes to be true for the purposes of a hypothetical must be put in evidence by witnesses other than the expert himself. Houston v. Canon Bowl, Inc., 443 Pa. 383, 278 A.2d 908 (1971). “To the extent that [the expert’s] opinions were predicated upon factual assumptions ... those assumptions ‘must find some support in the record.’” Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1142 (3d Cir. 1990) (quoting Pennsylvania Dental Association v. Medical Service Association of Pennsylvania, 745 F.2d 248, 262 (3d Cir. 1984)). This is because the opinion of an expert does not constitute proof of the existence of facts necessary to support the opinion. Collins v. Hand, 431 Pa. 378, 246 A.2d 398, 404 (1968); see also Kimberly Clark Corporation v. Workers’ Compensation Appeal Board (Bullard), 790 A.2d 1072 (Pa. Cmwlth. 2001) (holding that a surveillance video not offered into evidence could not support a medical expert’s opinion that an individual could return to work without restrictions because it lacked factual foundation).

Carletti v. Commonwealth, Department of Transportation, 190 A.3d

766, 778 (Pa. Cmwlth. 2018).

For these reasons, because Dr. Muscari’s opinion and her report were

based on unproven allegations, the trial court should have excluded that

evidence and her opinion based on that evidence. Furthermore, because she

was its only witness, without any proof to support the underlying claims that

formed the basis of Dr. Muscari’s opinion, the Commonwealth failed to present

clear and convincing evidence that Aumick qualifies as an SVP. Accordingly,

- 10 - J-A24016-21

because the Commonwealth has not made out it statutory evidentiary burden,

the trial court’s SVP designation is reversed.

Judgment of sentence reversed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/23/2022

- 11 -