Sexually Violent Predator (SVP) Determination be Based on FACTS

The PA Superior Court found that SVP determinations cannot be based simply on allegations and hearsay in the case of Commonwealth v. John Aumick, 2022 PA Super. 33 (Aumick). Mr. Aumick plead guilty to a Corruption of Minors charge against his stepdaughter in exchange for having the many other charges dismissed. He was sentenced to incarceration and placed on SORNA. As per SORNA, the court must determine whether the defendant has a mental abnormality or personality disorder that makes the individual likely to engage in predatory sexually violent offenses (42Pa.C.S. § 9799.12). The court ordered an SVP assessment on Mr. Aumick with a prepared report. Mary E. Muscari, Ph.D., Sex Offender Assessment Board (SOAB) did the assessment and report and concluded that he met the criteria of an SVP, § 9799.24(b).

“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,” Aumick, page 5. The Commonwealth must present evidence to the Court at the SVP hearing just as they would at trial. “[They] attempted to prove its case based solely on Dr. Muscari’s testimony. She testified that in arriving at her opinion… 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… 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.,” Aumick, pages 5 & 6. The Common Pleas Court determined Mr. Aumick an SVP despite the concessions.

There lies the problem! Her assessment was completely subjective rather than objective. It was completely based on opinions, feelings, and unproven allegations. Nowhere was there FACTUAL evidence in this SVP determination. First-of-all, Dr. Muscari and the Common Pleas Court violated § 9799.24 providing that the assessment be made based on the offense to which the individual was convicted. Including all the other charges to which he did not plead guilty to in the SVP assessment and the Courts determination is a clear violation of Due Process.

Then secondly, “[t]he 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 […] 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 amount to clear and convincing evidence upon which an SVP determination must be made,” Aumick, pages 8, 9-10.

What does this mean for future SVP assessments and determinations? I’ll first caution that this is not a final ruling yet. The Commonwealth can still appeal this decision to the PA Supreme Court (SCOPA) at which time SCOPA can affirm or reverse the Super. Court. If the Commonwealth does not appeal or SCOPA affirms, SOAB assessors will have to set aside their subjective opinions and beliefs and thoroughly investigate the matter as true professionals and not as political figures. Just think how many more SVP determinations can be reversed if others make the same challenge.

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