Com. v. Aumick, J.

J-A24016-21
2022 PA Super 33COMMONWEALTH 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 -