Commonwealth v.

COMMONWEALTH OF PENNSYLVANIA Appellee v. S.O.T. Appellant

J-A03030-15

No. 1304 MDA 2014

SUPERIOR COURT OF PENNSYLVANIA

MAY 27, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence entered June 16, 2014

In the Court of Common Pleas of Adams County

Criminal Division at No: CP-01-CR-0001099-2013

BEFORE: MUNDY, STABILE, and FITZGERALD,^* JJ.

MEMORANDUM BY STABILE, J.:

Appellant, S.O.T., appeals from the judgment of sentence of the Court of Common Pleas of Adams County entered on June 16, 2014. Appellant challenges his Sexually Violent Predator (SVP) determination. In particular, Appellant argues the trial court erred in admitting the expert's opinion because the opinion relied on inherently unreliable documents containing unproven allegations. For the reasons stated below, we affirm.

The trial court summarized the relevant facts and procedural history of the case as follows.

On January 6, 2014, Appellant entered pleas of guilty to statutory sexual assault and unlawful contact with a minor stemming from numerous incidents in which he had sexual intercourse with his biological daughter, beginning when she was fourteen and ending when she was age twenty. [The trial court] directed that Appellant be referred to the Sexual Offenders Assessment Board for a [s]exual [o]ffender [a]ssessment. Dr. Robert M. Stein ("Dr. Stein") conducted the assessment of Appellant and created a report containing his evaluation and conclusions based on the information provided to him. A hearing was held on June 16, 2014, to determine whether Appellant met the criteria to be classified as [an SVP] for purposes of sex offender registration and to sentence Appellant on the counts he previously plead guilty. Immediately prior to the hearing, Appellant made a motion in limine requesting that the facts testified to by [the] expert witness[] at the hearing be admitted into evidence only to the extent that they explain the basis for the expert's opinion rather than for their substantive value. This [c]ourt denied Appellant's motion.

During the hearing, the Commonwealth called Dr. Stein to testify regarding the [s]exual [o]ffender [a]ssessment he conducted and the report he authored which summarizes his findings. Based on his extensive credentials, the [c]ourt qualified Dr. Stein as an expert in sexual offender assessments. Dr. Stein testified that, in forming his expert opinion and authoring his report, he relied on a report by the board investigator, the [o]rder of [c]ourt, the response from defense counsel, the incident report from the Pennsylvania State Police, [and] the criminal information. At the time the Commonwealth sought to admit Dr. Stein's report, Appellant renewed his objection on the basis that the facts relied on in the report have not been verified and thus the report cannot be offered for its truth. This [c]ourt overruled Appellant's objection and the report was admitted.

Dr. Stein described each of the fifteen factors statutorily required to be assessed and stated the manner in which the facts of Appellant's case applied to each factor to lead him to the conclusion that Appellant meets the criteria to be classified as an SVP under Pennsylvania law. During the SVP hearing, Dr. Stein testified that, in completing his analysis, he diagnosed Appellant with other specified paraphilic disorder non-consent and stated that "other specified" is a term that is used when the specific target of the sexual deviance is not specifically listed and the evaluator chooses to specify the reason. Dr. Stein specified that the reason for his diagnosis was non-consent. He based his assessment of the non-consensual nature of the sexual relations on the fact that the victim could not consent because of her young age and the victim's statement to the police that, when

the sexual acts first started, she did not know what to do and was scared. Dr. Stein stated that the condition of other specified paraphilic disorder non-consent was the impetus for Appellant's sexual offending.

Following Dr. Stein's testimony on direct examination, Appellant's attorney conducted an extensive cross examination of Dr. Stein with an emphasis on the limitations of the sources from which Dr. Stein gleaned the facts used to form his conclusions. Appellant's attorney also challenged the factual basis for Dr. Stein's opinion and conclusion that the victim did not consent to the sexual encounters. A lengthy exchange occurred between defense counsel and Dr. Stein regarding the victim's statement to the police that she was scared and did not know what to do when Appellant began the sexual relationship, the fact that the victim was fourteen years old when the sexual intercourse began, and the nature of the relationship between Appellant and the victim.

Appellant called an expert witness, Dr. Amy Taylor ("Dr. Taylor"), to challenge whether the Commonwealth carried its burden of proof through the testimony of Dr. Stein. Dr. Taylor critiqued both the sources of facts upon which Dr. Stein relied in assessing Appellant, as well as his conclusions based on those limited facts. She testified that Dr. Stein's analysis relied too heavily on inferences derived from the offense itself without consideration of information specific to this offense and stated her opinion that Dr. Stein should have sought collateral sources, including possibly conducting an interview with the victim, to further inform his conclusions. Dr. Taylor further testified that, without additional information, Dr. Stein could not have concluded with a reasonable degree of professional certainty that Appellant had a mental abnormality or personality disorder which was the impetus to the sexual offending behavior. Specifically, she stated that sexual intercourse with an adolescent, in and of itself, does not signify that paraphilia is the cause of that behavior and that such behavior may have an alternate cause. Dr. Taylor also testified that consideration should be given to the possibility that some information contained in the type of documents Dr. Stein was reviewing may not be true or accurate.

Based on all of the testimony presented at Appellant's SVP hearing, this [c]ourt determined that the Commonwealth met its burden of proving by clear and convincing evidence thatAppellant should be classified as an SVP pursuant to Pennsylvania law.

Trial Court Opinion, 9/10/14, at 1-4 (footnotes and citation to record omitted).

Appellant raises the following issues for our review:

I. Whether the lower court erred when it admitted into evidence at the SVP hearing, for substantive purposes, the factual basis for the opinion of the Commonwealth's expert, including that factual basis derived from unproven allegations made in police documents, which [Appellant] argued were admissible to explain the expert's opinion but not for their truth.

II. Whether the lower court erred when it admitted into evidence at the SVP hearing, for any purpose, the factual basis for the opinion of the Commonwealth's expert, including that concerning whether the victim consented, because the factual basis derived from certain unproven allegations made in police documents that could not be reasonably relied upon.

Appellant's Brief at 8.

A challenge to a determination of SVP status requires us to view the evidence

in the light most favorable to the Commonwealth. The reviewing court may not weigh the evidence or substitute its judgment for that of the trial court. The clear and convincing standard requires evidence that is so clear, direct, weighty and convincing as to enable [the trier of fact] to come to a clear conviction, without hesitancy, of the truth of the precise facts [at] issue.

Commonwealth v. Plucinski, 868 A.2d 20, 25 (Pa. Super. 2005) (internal citations and quotation marks omitted). The scope of review is plenary. Commonwealth v. Brooks, 7 A.3d 852 (Pa. Super. 2010), appeal denied, 610 Pa. 614, 21 A.3d 1189 (2011). "[A]n expert's opinion, which is rendered to a reasonable degree of professional certainty, is itself evidence."

Commonwealth v. Fuentes, 991 A.2d 935, 944 (Pa. Super. 2010) (en banc), appeal denied, 608 Pa. 645, 12 A.3d 370 (2010) (emphasis in original).

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. Commonwealth v. Meals, 590 Pa. 110, 119, 912 A.2d 213, 218 (2006). The reviewing court must examine all of the Commonwealth's evidence without consideration of its admissibility. Commonwealth v. Baker, 24 A.3d 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, 580 Pa. 604, 608-09, 863 A.2d 428, 431 (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").

As a general rule, [the] standard of review of a trial court's evidentiary ruling ... is limited to determining whether the trial court abused its discretion. An abuse of discretion may not be found merely because 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.

Commonwealth v. Dengler, 586 Pa. 54, 65, 890 A.2d 372, 379 (2005) (internal citations and quotation marks omitted). Our task in either scenario is one of review, not one of reweighing or assessing the evidence in the first instance. Meals, supra at 127, 912 A.2d at 223

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