Com. v. J.D.M. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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