Com. v. Ortiz-Rodriguez, G.

J-A08026-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GAGE ORTIZ-RODRIGUEZ :
:
Appellant : No. 268 WDA 2021
Appeal from the Judgment of Sentence Entered February 11, 2021
In the Court of Common Pleas of McKean County Criminal Division at
No(s): CP-42-CR-0000117-2020,
CP-42-CR-0000306-2019, CP-42-CR-0000437-2019
BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.
MEMORANDUM BY LAZARUS, J.: FILED: JUNE 14, 2022
Gage Ortiz-Rodriguez appeals1 from the judgment of sentence, entered
in the Court of Common Pleas of McKean County, following his hybrid guilty
plea. After review, we affirm.
Ortiz-Rodriguez was charged at the above-captioned dockets with a
myriad of sexual assault crimes in relation to the sexual abuse of two minor
boys. Ortiz-Rodriguez’s cases were consolidated, and, on April 23, 2020,
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1 Ortiz-Rodriguez filed a single notice of appeal in violation of Commonwealth
v. Walker, 185 A.3d 969 (Pa. 2018). However, this Court has recognized
that a breakdown in court operations occurs “when the defect resulted from
an appellant’s acting in accordance with misinformation relayed to him by the
trial court.” Commonwealth v. Larkin, 235 A.3d 350, 353 (Pa. Super. 2020)
(en banc). Instantly, at the sentencing hearing, the trial court advised Ortiz-
Rodriguez that “[w]ithin 30 days you can file an appeal[.]” N.T. Sentencing
Hearing, 2/21/21, at 9 (emphasis added). Thus, a breakdown in court
operations occurred and, accordingly, we decline to quash the appeal.
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Ortiz-Rodriguez entered into a hybrid guilty plea, in which he pled guilty to
two counts of involuntary deviate sexual intercourse,2 four counts of sexual
abuse of children,3 one count of indecent assault,4 and one count of criminal
solicitation to commit sexual assault.5 The parties agreed to an aggregate
sentence of 6 to 12 years’ incarceration, followed by 4 years of probation.
There was no agreement reached as to Ortiz-Rodriguez’s sexually violent
predator (SVP) status. The trial court accepted Ortiz-Rodriguez’s plea,
deferred sentencing, and ordered Ortiz-Rodriguez to undergo an SVP
assessment.
On December 15, 2020, the trial court conducted an SVP hearing at
which Paul Everett, an investigator and supervisor for the Pennsylvania Sexual
Offender Assessment Board (SOAB), and Brenda Manno,6 a licensed social
worker and SOAB board member, testified. At the close of the hearing, the
trial court determined that Ortiz-Rodriguez was an SVP, ordered a pre-
sentence investigation report, and scheduled a sentencing hearing. On
February 11, 2021, the trial court sentenced Ortiz-Rodriguez, in accordance
with the plea agreement, to an aggregate term of 6 to 12 years in prison,
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2 18 Pa.C.S.A. § 3123(a)(7).
3 18 Pa.C.S.A. §§ 6312(b)(1)-(2), (c), (d).
4 18 Pa.C.S.A. § 3126(a)(1).
5 18 Pa.C.S.A. § 902(a).
6At the SVP hearing, Manno was qualified as an expert in SVP assessments
and licensed clinical social work. See N.T. SVP Hearing, 12/15/20, at 26-27.
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followed by 4 years of probation. Ortiz-Rodriguez did not file a post-sentence
motion.
Ortiz-Rodriguez filed a timely notice of appeal, and a court-ordered
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Ortiz-Rodriguez now raises the following claim for our review:
Whether the trial court erred [and] abused its discretion[] in
admitting the contents of an investigative report completed by []
Everett, the investigator for [] SOAB, and subsequently
considered the expert opinion of [] Manno, when said opinion and
documents were the product of review of hearsay statements that
were not admitted as part of a guilty plea proceeding or subject
to impeachment and which did not comply with Pa.R.E. 703 and
705?
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, 912 A.2d 213,
218 (Pa. 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 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
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been satisfied.” Commonwealth v. Baker, 24 A.3d 1006, 1033 (Pa. Super.
2011).
Instantly, Ortiz-Rodriguez does not dispute that his convictions
constitute sexually violent offenses under 42 Pa.C.S.A. § 9799.14. Rather, he
argues that the trial court erred when it admitted Manno’s expert opinion
testimony. Brief for Appellant, at 20. Ortiz-Rodriguez asserts that Manno’s
expert opinion is based on inadmissible hearsay evidence contained within
Everett’s investigative report and, therefore, Manno’s opinion is inappropriate.
Id. at 21. However, Ortiz-Rodriguez concedes that 42 Pa.C.S.A. § 9799.24(c),
relating to SVP assessments, allows experts to consider otherwise
inadmissible evidence. Brief for Appellant, at 21-22. Nevertheless, Ortiz-
Rodriguez contends that Rules 703 and 705 require experts to disclose the
specific facts relied upon in reaching an expert opinion. Id. at 22-23. Further,
Ortiz-Rodriguez claims that, at the SVP hearing, Manno did not reference
specific facts relating to Ortiz-Rodriguez’s “unusual cruelty” or “whether he
promoted a relationship for the purpose of victimization[,]” and, thus, is not
based in fact, in violation of Rules 703 and 705. Id. at 22-23, 25.
Preliminarily, to the extent that Ortiz-Rodriguez claims Manno’s opinion
is based upon inappropriate hearsay evidence, we conclude that he has
conceded this claim, as he stated as much in his brief. See id. at 21-22.
Indeed, section 9799.24(c) expressly permits experts to consider otherwise
inadmissible evidence in rendering their opinion for SVP designations. See
Commonwealth v. Prendes, 97 A.3d 337, 361 (Pa. Super. 2014); Pa.R.E.
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703 (“An expert may base an opinion on facts or data in the case that the
expert has been made aware of or personally observed. If experts in the
particular field would reasonably rely on those kinds of facts or date in forming
an opinion on the subject, they need not be admissible for the opinion to
be admitted.”) (emphasis added).
Moreover, to the extent that Ortiz-Rodriguez claims that Manno did not
specify any facts or information that she considered in concluding the Ortiz-
Rodriguez displayed “unusual cruelty” or determining whether he “promoted
a relationship for the purposes of victimization,” this claim lacks merit and is
belied by the record. Manno’s opinion that Ortiz-Rodriguez is an SVP was
rendered to a reasonable degree of professional certainty. See N.T. SVP
Hearing, 12/15/20, at 40, 42; see also id. at 38-40 (Manno testifying that
Ortiz-Rodriguez meets criteria for “Unspecified Paraphilic Disorder,”7 a lifetime
condition).
At the SVP hearing, the trial court stated its findings regarding Manno’s
testimony as follows:
[O]ver and over we heard[,] “I looked at what was plead to; I
looked at the statement made by the victims[;] I looked at their
actual statements; I looked at the complaint and the summary of
what the victims said happened.” If there is no issue with that
information being considered by [Manno] then there’s no doubt
that her analysis and conclusion is valid. Considering her
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7 “Paraphilia” is defined as a pattern of recurring sexually-arousing mental
imagery or behavior that involves unusual and especially socially unacceptable
sexual practices (such as sadism or pedophilia). See Merriam-Webster,
http://www.merriam-webster.com/dictionary/paraphilia.
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expertise, considering she pointed directly to what . . . she used
to analyze the case[,] there’s sufficient support for her finding.
She’s an expert. The [c]ourt accepts both her expertise and the
analysis that [Ortiz-Rodriguez] fits the definition. The only issue
there is a legal one. If it says in the [District Attorney]’s file that
victim number one said[,] “Here’s what happened in this particular
case. I was at [Ortiz-Rodriguez’s house when] these things
happened. He took pictures; here’s what he said to me; here’s
what he sent to me. Though all those facts weren’t outlined at
the time of the plea[,] but that’s what’s in the file. It [] was
appropriate for [Manno] to consider all that information[,] then
her analysis and conclusion is completely accurate and acceptable
to the [c]ourt. . . . Based on the authority that was provided . . .
and my previous rulings, I’m finding that it was appropriate to rely
on the information in the file[,] specifically the statements of the
victims of what occurred as were documented.
* * *
So I find the analysis [is validly legal and] the opinion of [Manno]
is accepted[.] It’s supported by what is in the record and,
therefore, I find that [Ortiz-Rodriguez] is a[n SVP].
N.T. SVP Hearing, 12/15/20, at 59-62.
Our review of the record confirms that the trial court’s determinations
were based upon clear and convincing evidence that Ortiz-Rodriguez met the
statutory criteria to be classified as an SVP. See id. at 29, 35 (wherein Manno
testified that Ortiz-Rodriguez demonstrated “unusual cruelty” when he
blackmailed his victims; took photographs of victims engaged in sexual acts;
sent those photographs to another minor; rubbed his penis on one child
victim’s anus; performed oral sex on one child victim; and played “games”
with child victims in which someone “would get naked”). Accordingly, we
afford him no relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/2022
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