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2023 PA Super 103
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: PANELLA, P.J., OLSON, J., DUBOW, J., KUNSELMAN, J., NICHOLS,
J., MURRAY, J., McLAUGHLIN, J., McCAFFERY, J., and SULLIVAN,
J.
OPINION BY SULLIVAN, J.: FILED JUNE 12, 2023
John R. Aumick (“Aumick”) appeals from the judgment of sentence
imposed following the entry of his negotiated guilty plea to corruption of
minors.1 Specifically, Aumick challenges the trial court’s determination that
he is a sexually violent predator (“SVP”) subject to lifetime registration
requirements pursuant to the Sex Offender Registration and Notification Act
(“SORNA II”), 42 Pa.C.S.A. § 9799.10 et seq. We affirm.
The relevant factual and procedural history of this matter is as follows.
In November 2017, Ashley Whitten discovered that her stepfather, Aumick,
had repeatedly sexually abused her daughter, P.M. One month later, Molly
Carson, a forensic interviewer for child abuse cases, conducted a videotaped
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1 See 18 Pa.C.S.A. § 6301(a)(1)(ii).
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forensic interview of P.M. at a child advocacy center. During the interview,
P.M., then fourteen years old, stated that Aumick had raped her when she was
six years old, causing her to experience soreness and resulting in blood on her
underwear. P.M. also stated that, a few weeks later, Aumick began touching
her vagina and then digitally penetrated her vagina with his finger. P.M.
explained that she asked Aumick to stop, but he refused to do so. P.M. told
the interviewer that Aumick did this to her on multiple occasions, but she
stopped him before he penetrated her on subsequent occasions. P.M. further
described several more instances of sexual abuse by her step-grandfather,
including exposing his penis to her, making sexually inappropriate comments,
watching her when she went to the bathroom, and on multiple occasions,
grabbing and touching her buttocks. P.M. indicated that Aumick stopped
touching her when she was eight or nine years old.
Police charged Aumick with seventeen sexual offenses, including, inter
alia, rape of a child, statutory sexual assault, aggravated indecent assault,
sexual assault, and corruption of minors. A preliminary hearing was
conducted on March 19, 2019, at which the Commonwealth presented the
testimony of Ms. Carson, who authenticated the video recording of the forensic
interview of P.M. regarding her sexual abuse by Aumick. In addition to the
video, the Commonwealth presented the testimony of Chief Detective Michael
Jones, who explained that the sexual abuse occurred at two locations within
Pike County. The detective stated that he interviewed Aumick and that, during
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the interview, Aumick told him that he had sexual intercourse with his
stepdaughter, Ms. Whitten, and that she performed oral sex on him.2 At the
conclusion of the preliminary hearing, the magistrate court held all charges
over for trial.
On January 18, 2020, following written and oral plea colloquies, Aumick
entered a negotiated guilty plea to corruption of minors, a felony of the third
degree and a Tier I offense which required him to be evaluated by the Sexual
Offender Assessment Board (“SOAB”) for classification as an SVP. See 42
Pa.C.S.A. § 9799.24(a) (providing that “a court shall order an individual
convicted of a sexually violent offense to be assessed by the board”); see
also id. § 9799.14 (classifying corruption of minors as a Tier I sexual offense).
In his written plea colloquy, Aumick agreed that “[b]etween June 2009
through December 2015, [he] engaged in a course of corruption against his
grandchild, P.M., ([born in 2003]), which included sexual touching of her
private areas. This occurred at two residences in Pike County, Lehman
Township, Pennsylvania.” Written Plea Colloquy, 1/8/20, at 4; see also N.T.,
1/8/20, at 4-5 (wherein Aumick confirmed at the plea hearing that the factual
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2 Ms. Whitten confirmed that she performed oral sex on Aumick in April 2017,
but also told investigators that Aumick had sexually assaulted her when she
was growing up.
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basis for his guilty plea was accurately set forth in the written plea colloquy).3
Pursuant to the negotiated plea agreement, the Commonwealth dismissed the
remaining sixteen charges against Aumick. The trial court then ordered a
presentence investigation report and scheduled the matter for a sentencing
hearing. The court also ordered a SOAB assessment in accordance with
section 9799.24(a).
Prior to the hearing, a SOAB investigator conducted an investigation
regarding Aumick and prepared a report. Based on the SOAB investigator’s
report and case-related documents, Mary Muscari, Ph.D., a SOAB member,
conducted an assessment of Aumick. Dr. Muscari determined that Aumick
should be classified as an SVP and prepared a report regarding her conclusion.
Based on Dr. Muscari’s assessment, the Commonwealth requested that the
trial court conduct a hearing to determine whether Aumick should be classified
as an SVP. See 42 Pa.C.S.A. § 9799.24(e)(1).
On July 13, 2020, the trial court conducted a hearing to determine
whether Aumick should be classified as an SVP and to impose sentence. At
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3 Inexplicably, Aumick insists throughout his appellate brief that he only
admitted to touching P.M.’s buttocks. See Aumick’s Brief at 9, 11, 13, 16,
and 20. However, this is simply not true. Aumick was accused of sexually
touching both P.M.’s vagina and buttocks on multiple occasions, and he
admitted in his written plea colloquy to “sexual touching of her private
areas” at two different residences. Written Plea Colloquy, 1/8/20, at 4
(emphasis added). We consider the “private areas” of a female to include
both the vagina and buttocks. Thus, we reject Aumick’s attempts to minimize
the conduct to which he admitted in connection with his guilty plea.
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the hearing, the Commonwealth presented the expert testimony and report of
Dr. Muscari, who was qualified by the trial court as an expert in the field of
sexual offender assessment without objection. See N.T., 7/13/20. at 6. Dr.
Muscari testified that she did not conduct an in-person interview with Aumick;
however, she explained that a majority of SVP assessments are completed
without an interview. Id. at 8. Dr. Muscari noted that she has completed
between 600 and 700 SVP assessments for SOAB over the past fifteen years.
Id. at 5. She further explained that, in conducting such assessments, she
reviews the materials provided through the courts, including police reports,
child protective reports, and testimony. Id. at 7. Dr. Muscari indicated that,
in assessing Aumick, she reviewed, inter alia, the affidavit of probable cause,
criminal information, criminal complaint, preliminary hearing transcript, and
investigative reports prepared by Child Protective Services. Id. at 9; see also
Exhibit 1, 2/28/20, at 1. Dr. Muscari explained that she assessed Aumick
based on the statutory factors and concluded to a reasonable degree of
professional certainty that Aumick should be classified as an SVP. Id. at 9,
18. Dr. Muscari referenced Aumick’s antisocial behavior, as reflected in his
prior criminal history, which includes convictions for homicide by vehicle and
burglary. Id. at 11. Dr. Muscari discussed her opinion that Aumick suffers
from a pedophilic disorder. Id. at 12-15. Dr. Muscari further opined that
Aumick’s sexual offense was the result of a mental defect or personality
disorder which made him more likely to reoffend. Id. at 15-17. Dr. Muscari
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additionally noted the particular vulnerability of the victim, her relationship to
Aumick, and the repeated nature of the sexual abuse. Id. Dr. Muscari
explained that, even though Aumick has experienced incarceration, Aumick’s
“condition overrode his emotional, volitional control so he could not control
his impulses to sexually abuse [P.M.]” despite her considerable protestations.
Id. at 16. Dr. Muscari opined that “Aumick is following a sexually deviant
pattern and he acted upon it by committing the index offense.” Id. Dr.
Muscari’s assessment and report were entered into evidence without
objection. Id. at 18.4
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4 The learned dissent insists that Dr. Muscari’s assessment was based solely
on the allegations to which Aumick did not plead guilty. See Dissenting
Opinion, at 6. However, this assertion is belied by the record. At the SVP
hearing, Dr. Muscari answered in the affirmative when she was asked, “did
you evaluate any factors with regard to the current offense for which [Aumick]
has been convicted by his Plea?” N.T., 7/13/20, at 9; see also id. at 20, 21
(wherein Dr. Muscari repeatedly agreed that Aumick pleaded guilty to
corruption of minors based on his repeatedly touching P.M. in a sexually
inappropriate manner). Moreover, in her opinion, Dr. Muscari indicated that
she had reviewed the affidavit of probable cause which detailed, inter alia,
P.M.’s accusations that Aumick “started touching her vagina with his
fingers . . . [and] had done this multiple times to her . . ..” Exhibit 1, 2/28/20,
at 2. Dr. Muscari further indicated in her expert report that, pursuant to the
affidavit, P.M. stated that Aumick “would grab and touch her butt, [and that]
this took place multiple times.” Id. In making her SVP assessment, Dr.
Muscari specifically indicated that her opinion was based on “[h]er having
reviewed all of the records available, having considered all of the factors
specified under Pennsylvania law, and having considered the current and
credible sex offender research . . ..” Id. at 9 (emphasis added). Thus, it is
clear that Dr. Muscari’s assessment included her consideration of the
accusations to which Aumick confessed (i.e., sexually touching P.M.’s private
areas on multiple occasions).
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Aumick’s counsel cross-examined Dr. Muscari regarding her
assessment. In particular, defense counsel questioned Dr. Muscari regarding
her consideration of all of P.M.’s allegations of sexual abuse rather than the
limited factual basis for Aumick’s plea of guilt for corruption of minors. Aumick
presented no evidence at the hearing. At the conclusion of the SVP hearing,
the trial court determined that the Commonwealth had met its burden of
proving by clear and convincing evidence that Aumick should be classified as
an SVP subject to lifetime reporting requirements under SORNA II. Id. at 31,
34.
The trial court then conducted a sentencing hearing at which P.M.
testified regarding the trauma she has suffered due to Aumick’s sexual abuse,
resulting in her suicide attempts. At the conclusion of the sentencing hearing,
the trial court imposed a sentence of eighteen months to five years in prison
for corruption of minors. Aumick filed a post-sentence motion for
reconsideration which the trial court denied. Aumick then filed a timely notice
of appeal, and both he and the trial court complied with Pa.R.A.P. 1925.
Aumick raises the following issues for our review:
A. WHETHER THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION BY FINDING THAT AUMICK WAS [AN SVP] BASED
ON ALLEGED INCIDENTS TO WHICH HE DID NOT PLEAD
GUILTY NOR OF WHICH HE WAS CONVICTED.
B. WHETHER THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION BY FINDING THAT AUMICK WAS [AN SVP] BASED
ENTIRELY ON HEARSAY IN THE FORM OF THE STATEMENTS OF
THE ALLEGED VICTIM WHO NEVER TESTIFIED AT ANY
PROCEEDING.
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Aumick’s Brief at 7 (capitalization in original).5
In both of his issues, Aumick challenges his SVP designation. A
challenge to a trial court’s SVP designation presents a challenge to the
sufficiency of the evidence for which our standard of review is de novo and
our scope of review is plenary. See Commonwealth v. Meals, 912 A.2d
213, 218 (Pa. 2006).6 A challenge to the sufficiency of the evidence to support
an SVP designation requires the reviewing court to accept the undiminished
record of the case in the light most favorable to the Commonwealth.
Id. The
reviewing court must examine all of the Commonwealth’s evidence without
consideration of its admissibility. See Commonwealth v. Baker,
24 A.3d
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5 Aumick’s issues, as presented in his statement of questions involved, purport
to raise claims of trial court error or abuse of discretion. However, in the
discussion section of his brief, Aumick does not explain how the trial court
erred or abused its discretion. Instead, Aumick focuses entirely on the basis
for Dr. Muscari’s opinion. Specifically, he challenges the information that Dr.
Muscari was permitted to consider when conducting her assessment as to
whether Aumick should be classified as an SVP. As explained above, the trial
court’s inquiry at an SVP hearing is different from the SOAB’s assessment.
Thus, a claim of trial court error or abuse of discretion involves an entirely
different inquiry than a challenge to a SOAB assessment. Pursuant to our
Rules of Appellate Procedure, “[n]o question will be considered unless it is
stated in the statement of questions involved or is fairly suggested thereby”).
Aumick did not raise any issue in the statement of questions involved
specifically relating to Dr. Muscari’s assessment. While we could find waiver
of both of Aumick’s issues on this basis, we decline to do so.
6 Although the Meals Court addressed a prior version of the SVP statute, see
42 Pa.C.S.A. § 9795.4 (repealed), it remains instructive in our review of a trial
court’s SVP determination under present law. See, e.g., Commonwealth v.
Woeber,
174 A.3d 1096, 1105-06 (Pa. Super. 2017) (relying on Meals for
the applicable scope and standard of review of an SVP designation).
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1006, 1035 (Pa. Super. 2011). A successful sufficiency challenge can lead to
an outright grant of relief such as a reversal of the SVP designation, whereas
a challenge to the admissibility of the expert’s opinion and testimony is an
evidentiary question which, if successful, can lead to a new SVP hearing.
Commonwealth v. Sanford, 863 A.2d 428, 431 (Pa. 2004) (distinguishing
concepts of sufficiency of evidence versus admissibility of evidence, but
refusing to render any opinion on whether SVP expert’s “reliance on the
affidavit of probable cause and the charging documents somehow rendered
her testimony inadmissible[,] as this issue is not before this court”). “We will
reverse a trial court’s determination of SVP status only if the Commonwealth
has not presented clear and convincing evidence that each element of the
statute has been satisfied.” Baker, 24 A.3d at 1033.
The procedure for determining SVP status is statutorily mandated and
well-defined. See Commonwealth v. Dixon, 907 A.2d 533, 535 (Pa. Super.
2006). Under revised Subchapter H of SORNA,7 after a person has been
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7 SORNA has been amended several times. SORNA I was originally enacted
on December 20, 2011, effective December 20, 2012, see Act of December
20, 2011, P.L. 446, No. 111, § 12, effective in one year or December 20, 2012
(Act 11 of 2011). Act 11 was amended on July 5, 2012, also effective
December 20, 2012, see Act of July 5, 2012, P.L. 880, No. 91, effective
December 20, 2012 (Act 91 of 2012), and amended on February 21, 2018,
effective immediately, known as Act 10 of 2018, see Act of February 21, 2018,
P.L. 27, No. 10, §§ 1-20, effective February 21, 2018 (“Act 10” of 2018), and,
lastly, reenacted and amended on June 12, 2018, P.L. 140, No. 29, §§ 1-23,
effective June 12, 2018 (“Act 29” of 2018). Through Act 10, as amended in
Act 29 (collectively, SORNA II), the General Assembly split SORNA I’s former
(Footnote Continued Next Page)
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convicted of an offense listed in section 9799.14, the trial court orders an
assessment by the SOAB. See 42 Pa.C.S.A. § 9799.24(a). The SOAB must
assess all individuals convicted of sexually violent offenses to determine
whether they should be classified as an SVP. See id. § 9799.24(b). When
assessing whether a particular offender should be classified as an SVP, “the
board shall establish standards for evaluations and for evaluators conducting
the assessments.” Id.
A SOAB board member conducts the assessment to determine if the
individual should be classified as an SVP. See id. To aid this function, “[a]ll
State, county and local agencies, offices and entities in this
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Subchapter H into a revised Subchapter H and Subchapter I. Subchapter I
applies to sexual offenders who committed an offense on or after April 22,
1996 but before December 20, 2012, whose period of registration has not
expired, or whose registration requirements under a former sexual offender
registration law have not expired. See 42 Pa.C.S.A. §§ 9799.51-9799.75.
Revised Subchapter H applies to offenders who committed an offense on or
after December 20, 2012 (the date SORNA I became effective). See 42
Pa.C.S.A. §§ 9799.10-9799.42. Both revised Subchapter H and Subchapter I
require an individual who has been designated as an SVP to register for life.
See 42 Pa.C.S.A. §§ 9799.15(d), 9799.55(b)(3). In the instant matter, P.M.
indicated that Aumick sexually abused her from the time she was six years
old until she was eight or nine years old. As P.M. was born in 2003, her
allegations suggest that the sexual offenses in question were committed
between 2009 and 2012, thereby implicating Subchapter I. However, as
explained above, Aumick pleaded guilty to sexual offenses committed
“[b]etween June 2009 through December 2015 . . ..” Written Plea Colloquy,
1/8/20, at 4. Thus, Aumick was convicted of offenses committed both before
and after December 20, 2012, thus straddling the boundary between revised
Subchapter H and Subchapter I. Nonetheless, the trial court classified Aumick
as an SVP under revised Subchapter H, which contains more stringent
reporting requirements than Subchapter I. As Aumick has not challenged that
classification, we need not address it.
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Commonwealth . . . shall cooperate by providing copies of records and
information as requested by the board in connection with the court-ordered
assessment.” Id. § 9799.24(c).
An assessment shall include, but not be limited to, an
examination of the following:
(1) Facts of the current offense, including:
(i) Whether the offense involved multiple victims.
(ii) Whether the individual exceeded the means necessary
to achieve the offense.
(iii) The nature of the sexual contact with the victim.
(iv) Relationship of the individual to the victim.
(v) Age of the victim.
(vi) Whether the offense included a display of unusual
cruelty by the individual during the commission of the
crime.
(vii) The mental capacity of the victim.
(2) Prior offense history, including:
(i) The individual's prior criminal record.
(ii) Whether the individual completed any prior sentences.
(iii) Whether the individual participated in available
programs for sexual offenders.
(3) Characteristics of the individual, including:
(i) Age of the individual.
(ii) Use of illegal drugs by the individual.
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(iii) A mental illness, mental disability or mental
abnormality.
(iv) Behavioral characteristics that contribute to the
individual's conduct.
(4) Factors that are supported in a sexual offender assessment
field as criteria reasonably related to the risk of reoffense.
Id. § 9799.24(b)(1)-(4). After completing its assessment, the SOAB member
must prepare and submit a written report to the district attorney, who may
file a praecipe for a hearing on the matter. See id. § 9799.24(d), (e)(1).
A SOAB expert opinion falls within the general rules regarding expert
witnesses. See Commonwealth v. Prendes, 97 A.3d 337, 360 (Pa. Super
2014), overruled sub silentio on other grounds by Commonwealth v.
Hvizda,
116 A.3d 1103, 1106 (Pa. 2015). In this regard, Pa.R.E. 702
provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge is beyond that possessed by the average
layperson;
(b) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; and
(c) the expert’s methodology is generally accepted in the
relevant field.
Pa.R.E. 702.
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Rule 703 identifies the facts and data upon which an expert may base
his or her opinion:
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 data in forming an opinion on the subject, they
need not be admissible for the opinion to be admitted.
Pa.R.E. 703.
Further, “[i]f the expert states an opinion the expert must state the facts
or data on which the opinion is based.” Pa.R.E. 705; see also id. Cmt.
(explaining that otherwise inadmissible facts and data supporting an expert
opinion are considered only to explain basis for expert’s opinion, not as
substantive evidence).
The trial court’s inquiry at an SVP hearing is different from the SOAB’s
assessment. Whereas the SOAB member must consider the fifteen factors
listed in section 9799.24(b), the trial court must determine whether the
Commonwealth has proven by clear and convincing evidence that the
defendant is an individual who has “a mental abnormality or personality
disorder that makes the individual likely to engage in predatory sexually
violent offenses.” 42 Pa.C.S.A. § 9799.12 (providing the definition of a
“sexually violent predator”); see also Commonwealth v. Butler, 226 A.3d
972, 992 (Pa. 2020) (stating, an SVP, in addition to having been convicted of
a sexually violent offense, is a person “who [has] been individually determined
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to suffer from a mental abnormality or personality disorder such that they are
highly likely to continue to commit sexually violent offenses”).
“An SVP assessment is not a trial or a separate criminal proceeding that
subjects the defendant to additional punishment.” Prendes, 97 A.3d at 358
(citing Commonwealth v. Howe,
842 A.2d 436, 445-46 (Pa. Super. 2004)).
“SVP status, therefore, does not require proof beyond a reasonable doubt;
[rather,] the court decides SVP status upon a show of clear and convincing
evidence that the offender is, in fact, an SVP.”
Id. (citing Commonwealth
v. Killinger,
888 A.2d 592, 600 (Pa. 2005)).
In both of his issues, Aumick challenges Dr. Muscari’s opinion to the
extent that she was permitted to consider allegations made by P.M. to which
he did not plead guilty when assessing whether he met the criteria to be
classified as an SVP. As these issues are interrelated, we will address them
together.
In his first issue, Aumick argues that his guilty plea was limited to the
offense of corruption of minors and further limited by his admission to sexual
touching of P.M.’s private areas.8 Aumick takes issue with the fact that Dr.
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8 As explained previously, Aumick attempts to minimize the extent of the
conduct to which he admitted in connection with his guilty plea by repeatedly
insisting that he merely admitted to sexually touching P.M.’s buttocks. See
Aumick’s Brief at 9, 11, 13, 16, and 20. Our review of the record, however,
reveals otherwise. Aumick agreed at his plea hearing that “[b]etween June
2009 through December 2015, [he] engaged in a course of corruption against
his grandchild, P.M. . . . which included sexual touching of her private
(Footnote Continued Next Page)
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Muscari based her assessment on the allegations contained in the police
report, including P.M.’s claims that Aumick penetrated her vagina with his
penis, digitally penetrated her vagina, touched her vagina on several
occasions, exposed his penis to her, watched her when she went to the
bathroom, grabbed and touched her buttocks on multiple occasions, and made
sexual comments to her. Aumick contends that, because he did not confess
or plead guilty to any conduct other than touching P.M.’s private area, Dr.
Muscari’s conclusion that Aumick suffers from pedophilic disorder is based on
unproven and unadmitted accusations. Aumick points out that his criminal
record contains no other arrests or convictions for sexual offenses. Aumick
asserts that “it in [sic] entirely inappropriate for an individual to be held liable
in a court of law during a sentencing proceeding based on a series of facts to
which he did not plead.” Aumick’s Brief at 16. Although Aumick concedes
that he was aware of and accepted that SORNA registration was a
consequence of his plea, he nevertheless contends that SORNA registration
must be based on the offenses committed, not the victim’s allegations.
____________________________________________
areas.” See Written Plea Colloquy, 1/8/20, at 4 (emphasis added). Notably,
P.M. accused Aumick of touching her vagina on multiple occasions and
grabbing and touching her buttocks on multiple occasions. See Exhibit 1,
2/28/20, at 2. Thus, contrary to Aumick’s assertions otherwise, his plea was
not limited to merely sexually touching P.M.’s buttocks on multiple occasions
and can be considered to also include his sexual touching of P.M.’s vagina on
multiple occasions.
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In his second issue, Aumick challenges Dr. Muscari’s opinion to the
extent that she did not examine P.M., and instead relied on information
provided by the Commonwealth. Aumick argues that “Dr. Muscari based her
opinion entirely on material outside of the facts of the case by reviewing
unproven and untested accusations to which no admission had been made.”
Aumick’s Brief at 18. Aumick claims that because P.M. never testified in this
case, her accusations against him were never tried or tested in any
appropriate forum and constitute hearsay.9 Aumick argues that Ms. Whitten
had cause to be biased against him and has strong influence and control over
P.M. Aumick contends that Dr. Muscari based her opinion on allegations of
actual sexual conduct over a period of years which he denied. According to
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9 Hearsay is defined as a statement that:
(1) the declarant does not make while testifying at the current
trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter
asserted in the statement.
Pa.R.E. 801(c). Although Aumick did not specifically use the word “hearsay”
in his post-sentence motion, he did challenge Dr. Muscari’s reliance on
“allegations of sexual contact beyond what [Aumick] confessed to and what
he was sentenced for, and that “[t]he opinion of the SOAB expert was
therefore based entirely on untried allegations to which [Aumick] never
admitted.” Motion to Reconsider Sentence, 7/21/20, at 1-2. Thus, as all of
the documentation relied on by Dr. Muscari included hearsay statements, we
deem his hearsay objection to be preserved.
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Aumick, Dr. Muscari’s opinion and conclusions were based on unknowable and
unprovable materials.10
Initially, we observe that the offense of corruption of minors to which
Aumick pleaded guilty is, without more, sufficient to trigger an SVP
assessment and provide a basis to support an SVP classification where the
Commonwealth’s evidence, including the SOAB assessment, demonstrates
that the person convicted of a sexually violent offense has a mental
abnormality or disorder rendering that person more likely to engage in
predatory sexually violent offenses. See Commonwealth v. Feucht, 955
A.2d 377, 381 (Pa. Super. 2008); see also 42 Pa.C.S.A. § 9799.24(a)
(providing that “a court shall order an individual convicted of a sexually violent
____________________________________________
10 In the argument section of his brief, Aumick attempts to raise additional
issues for our review; namely, that Dr. Muscari’s consideration of P.M.’s
unproven allegations constitutes a breach of his plea agreement as well as a
violation of the confrontation clause. However, these claims were not raised
in Aumick’s statement of questions presented. See Pa.R.A.P. 2116 (providing
that “[n]o question will be considered unless it is stated in the statement of
questions presented or is fairly suggested thereby”). Moreover, Aumick did
not raise these issues in either his post-sentence motion or in his Rule 1925(b)
concise statement. See Pa.R.A.P. 302(a) (providing that “[i]ssues not raised
in the lower court are waived and cannot be raised for the first time on
appeal”); see also Pa.R.A.P. 1925(b)(4)(vii) (providing that issues not raised
in the concise statement are waived). Although Aumick raised a hearsay
violation, the concepts of hearsay and confrontation clause violations are
distinguishable. See Commonwealth v. Chmiel,
738 A.2d 406, 420 (Pa.
1999). Therefore, as Aumick failed to preserve these additional issues for our
review, we decline to address them.
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offense to be assessed by the board”); id. § 9799.14 (classifying corruption
of minors as a Tier I sexual offense).
Moreover, to the extent that Dr. Muscari considered P.M.’s other
accusations and information contained in documents provided by the
Commonwealth11 in making her assessment, this Court has previously
determined that she was permitted to do so. In Prendes, we addressed a
similar challenge where the appellant argued that the record did not support
his SVP classification because the trial court’s SVP determination was based
on a SOAB member’s expert testimony that was founded on hearsay and
unproven allegations contained in police reports, the affidavit of probable
cause, polygraph examination reports, and other documents of record. The
Prendes Court ruled that, in making her SVP assessment, the SOAB member
was permitted to consider those documents because she testified that such
records are typically relied on in SOAB evaluations. See Prendes, 97 A.3d at
362; see also Pa.R.E. 703, 705. The Prendes Court explained:
The statute governing the SVP assessment does not limit
the expert’s consideration of information only to that admitted at
trial or at the guilty plea proceedings. In fact, the statute
requires state, county, and local agencies, offices or entities to
provide copies of records and information as requested by the
SOAB in connection with an SVP assessment, without limitation
____________________________________________
11 In her expert report, Dr. Muscari indicated that she reviewed the following
documents: the SOAB investigator’s report; the trial court order for an SVP
assessment; the criminal information; the criminal complaint; the affidavit of
probable cause; the District Attorney’s CID; the preliminary hearing
transcript; the bail report; and the Child Protective Services reports. See
Exhibit 1, 2/28/20, at 1.
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on the “admissibility” of that information. See 42 Pa.C.S.A.
§ 9799.24(c). As a result, it stands to reason that some if not
many of the facts necessary to perform the SVP assessment might
not have been proven beyond a reasonable doubt. Thus, we hold
an SOAB expert opinion falls within the general rules regarding
expert witnesses. As such, a SOAB expert’s opinion may be based
on facts or data that 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 an
opinion on the subject; the facts or data consulted need not be
admissible for the expert’s opinion to be admitted. See Pa.R.E.
702, 703 . . . The SOAB expert must state the facts or data on
which the opinion is based. See Pa.R.E. 705 and Comment
(explaining otherwise inadmissible facts and data supporting
expert opinion are considered only to explain the basis for an
expert’s opinion, not as substantive evidence). Then, 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 crossexamination. . . . Opposing counsel bears the burden of exposing
and exploring any weaknesses in the underpinnings of the expert’s
opinion.
Id. at 360-61 (some citations omitted, emphasis added).12
Based on the reasoning expressed in Prendes, we conclude that Dr.
Muscari was permitted to consider the affidavit of probable cause, criminal
information, criminal complaint, preliminary hearing transcript, and the
investigative reports prepared by Child Protective Services when assessing
Aumick. See Prendes, 97 A.3d at 360-61; see also 42 Pa.C.S.A.
§ 9799.24(c); Pa.R.E. 702, 703, 705. Pursuant to revised Subchapter H, the
SOAB must undertake a comprehensive assessment of a defendant convicted
____________________________________________
12 Aumick concedes that, pursuant to Prendes, “an expert’s decision can be
based on otherwise inadmissible materials in a SORNA assessment.” Aumick’s
Brief at 18.
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of a sexually violent offense by considering the fifteen factors set forth in
section 9799.24(b)(1)-(4). See id. § 9799.24(b)(1)-(4). Section 9799.24(c)
expressly requires that “[a]ll 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 board in connection with the court-ordered
assessment . . ..” 42 Pa.C.S.A. § 9799.24(c) (emphasis added). Moreover,
within ninety days of a defendant’s qualifying conviction, the SOAB must
prepare a written report regarding its assessment which includes, at a
minimum, the following information: (1) a concise narrative of the individual’s
conduct; (2) whether the victim was a minor; (3) the manner of weapon or
physical force used or threatened; (4) if the offense involved unauthorized
entry into a room or vehicle occupied by the victim; (5) if the offense was part
of a course or pattern of conduct involving multiple incidents or victims; and
(6) previous instances in which the individual was determined guilty of an
offense subject to this subchapter or of a crime of violence as defined in
section 9714(g) (relating to sentences for second and subsequent offenses).
Id. § 9799.24(d), (d.1).
Given these statutory mandates, it is clear that the legislature intended
that the SOAB member consider more than the limited facts included in a plea
colloquy, and that the SOAB member undertake to review and consider the
information contained in records provided by state, county and local agencies,
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offices and entities in this Commonwealth when making an SVP assessment
and preparing a statutorily compliant written report. To be sure, it would be
the rare occasion on which the SOAB member would be able to fulfill its
statutory obligations if its SVP assessments and written reports were limited
to facts contained in a plea colloquy, admitted into evidence, or determined
by the trier of fact.13
Moreover, in the context of an SVP hearing, the judge is not tasked with
evaluating the veracity of the facts underlying the expert’s testimony. See
Prendes, 97 A.3d 360 (explaining that an SVP hearing is not a trial and the
primary purpose of the SVP registration requirements is to protect the public,
not to punish the offender). Indeed, the facts presented at an SVP hearing
are not being offered for the truth of the matter asserted, as would be the
case in a true hearsay scenario. Instead, they constitute information, gleaned
from records which are reasonably relied on in SOAB evaluations, that is
presented to the trial court solely to supply the basis for the expert’s opinion
in accordance with our Rules of Evidence. See Prendes,
97 A.3d at 362; see
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13 Despite established jurisprudence on this point, the learned dissent
conflates an SVP hearing with a preliminary hearing with respect to the
consideration of hearsay evidence. See Dissenting Opinion, at 9 n.2 (relying
on Commonwealth v. McClelland,
233 A.3d 717, 736 (Pa. 2020) (holding
that a defendant’s due process rights are violated at a preliminary hearing
when charges are held over based solely on hearsay)). As explained above,
an SVP assessment is not a trial or a separate criminal proceeding that
subjects the defendant to additional punishment. Prendes,
97 A.3d at 358;
see also Killinger,
888 A.2d at 600.
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also Pa.R.E. 703, 705. Accordingly, the otherwise inadmissible facts
reasonably relied upon by Dr. Muscari to explain the basis of her opinion,
including the allegations of sexual abuse asserted by P.M., do not constitute
substantive evidence. See Prendes, 97 A.3d at 361; see also Pa.R.E. 703,
705 and Cmt.
On the other hand, an expert’s opinion which is rendered to a reasonable
degree of professional certainty is, itself, substantive evidence. See
Commonwealth v. Fuentes, 991 A.2d 935, 944-45 (Pa. Super. 2010) (en
banc) (concluding that, because the expert’s report and testimony supported
the trial court’s finding that appellant was an SVP, there was no basis for
granting sufficiency relief). Thus, in this case, Dr. Muscari’s opinion that
Aumick is an SVP, which was rendered to a reasonable degree of professional
certainty based on the materials she had reviewed, constituted sufficient
evidence for the trial court to make its SVP determination.14
Aumick had the opportunity to defend himself against Dr. Muscari’s
opinion by presenting his own defense expert at the SVP hearing and by cross-
examining Dr. Muscari to test the reliability and credibility of her opinion.
____________________________________________
14 To the extent that Aumick attempts to challenge the admissibility of Dr.
Muscari’s expert report, that challenge is waived, as he did not object to the
admission of her expert report during the SVP hearing. See Commonwealth
v. Baker, 24 A.3d 1006, 1034 (Pa. Super. 2011) (holding that “[h]aving failed
to raise an objection before the trial court, Baker cannot now complain that
the trial court erred in admitting the [SOAB member’s expert report at the
SVP hearing] . . ..”).
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Aumick did not retain a defense expert or present any evidence at the SVP
hearing. Although defense counsel subjected Dr. Muscari to questioning
regarding the materials she relied upon in making her assessment, such
efforts went to the weight rather than the sufficiency of the Commonwealth’s
case. See Feucht, 955 A.2d at 382.15 Accordingly, they do not affect our
sufficiency analysis.
Viewing the record evidence in the light most favorable to the
Commonwealth, we conclude that the record substantiates the trial court’s
determination that the Commonwealth presented clear and convincing
evidence that Aumick met the statutory criteria to be classified as an SVP
under revised Subchapter H of SORNA II. Dr. Muscari testified to a reasonable
degree of professional certainty that Aumick suffers from a pedophilic
disorder, is following a sexually deviant pattern, and is an individual who has
a mental abnormality or personality disorder that makes him likely to engage
in predatory sexually violent offenses. See N.T., 7/13/20, at 9, 12-18.
Aumick essentially asks this Court to reweigh the evidence and find in his
favor, which we cannot do. See Fuentes, 991 A.2d at 944-45 (holding that
____________________________________________
15 Aumick failed to raise a challenge to the weight of the evidence in the lower
court. Thus, he failed to preserve a weight challenge for our review. See
Pa.R.Crim.P. 607 (providing that a challenge to the weight of the evidence
must be preserved in a post-sentence motion, prior to sentencing orally, or
through a written motion); see also Pa.R.A.P. 302(a) (providing that issues
not raised in the lower court are waived and cannot be raised for the first time
on appeal).
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appellant’s challenge to the information considered by the SOAB expert in
making the SVP assessment went to the weight rather than the sufficiency of
the evidence). Accordingly, we afford him no relief.
Judgment of sentence affirmed.
President Judge Panella, Judges Olson, Kunselman, Nichols, Murray,
McLaughlin and McCaffery join this opinion.
Judge Dubow files a dissenting opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/12/2023
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