In an article I published on July 13, 2022, I promised I would update you on the Superior Court Com. v. John Aumick, 2022 PA Super. 33 (Aumick I) . I also wrote, “[n]ormally I don’t write articles on Superior Court cases for two reasons: 1) an application for en banc (full court) reargument can be filed whereas, if granted, the opinion would be withdrawn and a reversal of the previous opinion could occur, or 2) an appeal could be filed to the Pennsylvania Supreme Court whereas, if granted, the lower court’s opinion could be reversed as we saw in Commonwealth v. Butler.” Unfortunately, I was correct on the first point.
First, a brief recap of the case. Mr. Aumick pled guilty to a Corruption of Minors charge against his stepdaughter in exchange for having many other charges dismissed. He was sentenced to incarceration and placed on SORNA. As per SORNA, the trial 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). Mr. Aumick appealed to the Superior Court before a panel of three judges where he challenged the sufficiency of the evidenceto support his SVP designation. The Court found that SVP determinations cannot be based simply on allegations and hearsay in the case of [Aumick I]. The Commonwealth then asked for a reargument before a panel of nine judges. The argument was on September 14th, 2022.
It has been over a year since the opinion in Aumick I was filed. The opinion in Aumick II was filed on June 12, 2023 with a disappointing decision. The Superior Court affirmed his SVP designation. The determination made by Dr. Muscari, was based on materials provided through the courts, police reports, child protective reports, and testimony. Without ever interviewing Mr. Aumick, she also concluded that he suffered from antisocial personality disorder and pedophilic disorder making him more likely to reoffend.
The Court relied on its ruling in Com. v. Prendes, 97 A.3d 337, 360 (Pa. Super 2014) to consider if Dr. Muscari was permitted to use materials provided through the courts, police reports, child protective reports when assessing Mr. Aumick. Prendes explained, “[t]he 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 on the “admissibility” of that information. See 42 Pa.C.S.A. § 9799.24(c).” Id. at 360.
There was one dissenting opinion written by Judge Alice Dubow. She wrote, “[s]ince the applicable statute requires the SVP evaluator to consider the ‘facts of the current
offense’ and the evaluator did not do so, but only considered allegations that supported sixteen charges the Commonwealth dismissed, the evidence is insufficient to support the trial court’s conclusion that Appellant met the criteria to be an SVP,” (Aumick II Dissenting, pg. 1). She later reports, “[i]n this case, Dr. Muscari admitted that she relied solely on the ‘allegations’ that supported the sixteen charges that the Commonwealth nolle prossed to determine Appellant met the SVP criteria. N.T., 7/13/2020, at 20; R.R. at 104-05. In particular, Dr. Muscari agreed that ‘everything in [her] assessment is based on the allegations to which Mr. Aumick did not plead guilty.’ Id. at 20, R.R. at 104. Dr. Muscari reasoned that because Appellant pled guilty to Corruption of Minors, it was reasonable for her to consider every accusation, including rape and digital penetration, alleged against him.” (Aumick II Dissenting, pg. 5).
In my opinion, Judge Dubow hit the nail on the head. Mr Aumick’s due process rights were violated when the trial court accepted Dr. Muscari’s assessment which were based solely on charges that he was never found guilty of. I believe this can lead to a slippery slope where an expert on the stand can use the defendants prior charges that were dismissed in prior or the current cases against the defendant to prove any risk to society. I would assume Mr. Aumick will file an appeal to the PA Supreme Court. I hope he does.
