Com. v. S.O.T.

J-A03030-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

S.O.T.

Appellant No. 1304 MDA 2014

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.: FILED MAY 27, 2015

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

____________________________________________

*

Former Justice specially assigned to the Superior Court.

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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

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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 that

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Appellant 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.”

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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.

Commonwealth v. Prendes, 97 A.3d 337, 355-56 (Pa. Super. 2014),

appeal denied, 105 A.3d 736 (Pa. 2014).

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In his first claim, Appellant argues the trial court erred in admitting as

substantive evidence the factual basis the expert witness relied upon in

formulating his opinion whether Appellant qualified as an SVP. While

Appellant cites several cases, he mostly relies on In re Adoption of R.K.Y.,

72 A.3d 669 (Pa. Super. 2013), for the proposition that “the factual basis of

an expert’s opinion is specifically not admissible as substantive evidence of

the truth of the [facts or data].” Appellant’s Brief at 19 (citing R.K.Y., 72

A.3d at 678) (emphasis and alteration in original) (internal quotation marks

omitted).1

Appellant’s argument is based on several unwarranted assumptions.

First, Appellant assumes that the trial court’s admission of the expert’s

opinion “without limitation”2 means that the trial court admitted the factual

basis upon which the expert relied upon as substantive evidence of those

facts. Appellant’s Brief at 22. Appellant next assumes the trial court’s

failure to enter a cautionary instruction to itself3 on how to treat the factual

____________________________________________

1

Appellant also discusses Pa.R.E. 703, 705, which we address infra in

connection with Appellant’s second issue.

2

The phrase “without limitation” was used by the trial court in its Rule

1925(a) opinion. Trial Court Opinion, 9/10/14, at 5. At the SVP hearing,

the trial court stated that it would “consider everything that’s necessary to

consider to make a determination under the statute whether the criteria are

met or not to classify [Appellant] as a sexually violent predator.” N.T. SVP

Hearing, 6/16/14, at 6.

3

At the SVP Hearing, Appellant suggested Pennsylvania Suggested Standard

Criminal Jury Instruction 4:11 as reference (limiting jury’s consideration of

facts not admitted into evidence except as basis for expert’s opinion). N.T.

(Footnote Continued Next Page)

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basis of expert’s opinion is evidence of the trial court’s improper reliance on

the challenged factual basis of the expert’s opinion. Id. Finally, he points to

the following statements as further evidence the trial court impermissibly

relied on the expert’s factual basis for purposes of the SVP determination:

The issue here, however, is whether . . . [Appellant] should be

classified as a sexually violent predator. To make some

determination, some underlying facts need to be brought into

evidence through the experts. Some of it is already before the

[c]ourt by way of the plea colloquy and so forth.

N.T. SVP Hearing, 6/16/14, at 4-5.

Appellant interprets these statements by the trial court as follows:

By the court’s own statements, it is clear that the court believed

that facts in addition to those in the plea colloquy would be

needed, and that the court anticipated the introduction of those

facts substantively through the expert witness. Such a position

is contrary to the settled law[.]4

Appellant’s Brief at 23 (emphasis in original).

The trial court responded to these allegations of error as follows:

Appellant asserts that this [c]ourt should have limited itself to

only considering the “unproven allegations” forming the basis of

Dr. Stein’s opinion for the limited purpose of explaining how he

arrived at his conclusion. In essence, Appellant believes that

this [c]ourt should have issued an instruction to itself, limiting

the purpose for which the [c]ourt could consider the facts

underlying Dr. Stein’s opinion. However, unlike cases involving

_______________________

(Footnote Continued)

SVP Hearing, 6/16/14, at 5-6. The trial court noted there was no need for

an instruction as no jury was involved in the proceeding. Id.

4

As explained infra, the only facts Appellant challenged are victim’s consent

to intercourse and frequency of the same. We address these matters below,

in connection with Appellant’s second claim.

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expert opinion in a jury trial, in the present case the [c]ourt was

sitting as a fact-finder in a hearing to determine whether, based

on the application of facts to the factors to be considered,

Appellant should be classified as an SVP. “[W]hen the court is

sitting as fact-finder it is presumed that inadmissible evidence is

disregarded and that only relevant and competent evidence is

considered.” Commonwealth v. Gonzales, 609 A.2d 1368,

1371 (Pa. Super. 1992) (citing Commonwealth v. Kevin

Davis, 421 A.2d 179 (Pa. 1980)). Moreover, it is assumed “that

a court in a bench trial would follow the very instructions which it

would otherwise give to a jury.” Id. (citations omitted).

Although this [c]ourt refused Appellant’s request to impose a

limit on the [c]ourt’s consideration of evidence, that fact alone

does not indicate that the [c]ourt considered the facts underlying

Dr. Stein’s analysis for an improper purpose under the

Pennsylvania Rules of Evidence. In denying Appellant’s motion

in limine, the [c]ourt stated that it will “consider everything

that’s necessary to consider to make a determination under the

statute whether the criteria are met to classify [Appellant] as a

sexually violent predator.” This [c]ourt considered the totality of

the facts presented at the hearing in determining that the

Commonwealth met its burden of proving by clear and

convincing evidence that Appellant met the criteria to be

classified as an SVP.

Dr. Stein’s opinion was not rendered at trial to a jury unfamiliar

with evidentiary rules and the standard to be applied. Instead,

this [c]ourt, after listening to Dr. Stein’s expert testimony,

considering issues raised in Appellant’s cross-examination of Dr.

Stein and the testimony of Appellant’s expert witness,

determined that, upon application of the facts as properly

presented through the witnesses to the law, Appellant should be

classified as an SVP. The record does not reflect any indication

this [c]ourt considered the facts underlying Dr. Stein’s report

and opinion for an improper purpose.

Trial Court Opinion, 9/10/14, at 9-10 (citation to N.T. omitted).

We agree. A review of the notes of testimony of the SVP hearing fails

to show anything in the record that would suggest the trial court considered

the factual basis relied upon by the expert for any purpose other than an

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explanation of the basis of the expert’s opinion. In fact, the record shows

the factual basis relied upon by the expert—heavily tested by Appellant on

cross-examination—was considered by the trial court along with other

evidence, including Appellant’s own expert witness casting doubts on Dr.

Stein’s opinion.5 The claim is therefore without merit.6

In his second claim, relying on a lower court decision, 7 Appellant

argues the trial court abused its discretion in relying on the expert’s factual

basis because the source of the expert’s information (i.e., the police

report/affidavit of probable cause) is “inherently unreliable.” Appellant’s

Brief, at 36. Appellant also argues only two unproven facts formed the basis

of the expert’s opinion: (i) victim’s non-consent to sexual intercourse and (ii)

sexual intercourse happened on an ongoing basis. Because police reports

are inherently unreliable and these two facts were unproven, Appellant

contends, the trial court should not have considered the factual basis relied

upon by the expert. Accordingly, Appellant concludes, the trial court abused

its discretion in considering these facts and the expert’s opinion in

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5

Appellant’s expert did not refute Dr. Stein’s opinion that Appellant qualified

as an SVP. N.T. SVP Hearing, 6/16/14, at 77. Nor could she have,

considering the limited purposes of her testimony. Id. at 52-53. Appellant’s

expert essentially opined that Dr. Stein relied on insufficient information to

support his assessment. Id. 67-68, 73.

6

Because of our conclusion, we do not need address R.K.Y., supra.

7

Commonwealth v. Leddington, 75 Pa. D.&C.4th 294 (Bucks Cty. 2005).

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determining whether Appellant qualifies as a sexually violent predator.8 We

disagree.

Appellant’s reliance on Leddington is misplaced, for several reasons.

First, the Bucks County decision is not binding on this Court. Second, even

if we were to consider it, it is readily apparent that the reasoning and

conclusions of the Bucks County court are questionable. Relevant statutes

and caselaw of this Court, in fact, directly contradict Leddington.

Section 9799.24, in relevant part, states

All 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 [State Sexual Offender Assessment Board

(SOAB)] in connection with the court-ordered assessment and

the assessment requested by the Pennsylvania Board of

Probation and Parole or the assessment of a delinquent child

under section 6358 (relating to assessment of delinquent

children by the State Sexual Offenders Assessment Board). . . .

____________________________________________

8

While not articulated as such, in his second claim, Appellant is actually

challenging the weight of the evidence upon which Dr. Stein relied. See

Meals, 912 A.2d at 223-24 (“To the extent [defendant] felt that the expert’s

‘diagnosis’ was not fully explained, did not square with accepted analyses of

the disorder, or was simply erroneous, he certainly was free to introduce

evidence to that effect and/or to argue to the factfinder that the

Commonwealth’s expert’s conclusions should be discounted or ignored. But

that argument would affect the weight, and not the sufficiency, of the

expert’s evidence.”) (footnote omitted); see also Fuentes, 991 A.2d at 944

(appellant’s argument that the evidence for the SVP determination was

insufficient because expert’s opinion was based solely on appellant’s prior

criminal record and police reports was in fact a challenge to the weight of

the evidence). Additionally, weight of the evidence is not for us to decide.

Meals, 912 A.2d at 223 (Regarding sexually violent predator assessments,

“[t]he task of the Superior Court is one of review, and not of weighing and

assessing evidence in the first instance.”).

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42 Pa.C.S.A. § 9799.24(c).

Thus, by statute, for purposes of the assessment, members of the

SOAB can, and routinely do, rely on information that often contains

“unproven allegations.” As explained, that alone, however, does not affect

its admissibility, but only its weight.

The general rules pertaining to expert’s opinions, set forth in Pa.R.E.

703 and 705, are also relevant for purposes of this analysis. See Prendes,

97 A.3d at 360-61.

Rule 703. Bases of an Expert’s Opinion Testimony

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.

“If an expert states an opinion the expert must state the facts or data

on which the opinion is based.” Pa.R.E. 705. The Comment expands as

follows:

When an expert testifies about the underlying facts and data

that support the expert’s opinion and the evidence would be

otherwise inadmissible, the trial judge upon request must, or on

the judge’s own initiative may, instruct the jury to consider the

facts and data only to explain the basis for the expert’s opinion,

and not as substantive evidence.

Id. Comment.

By statute, therefore, experts, in forming their opinion, can rely on

otherwise inadmissible facts. If experts rely on inadmissible facts, these

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facts can be used only for purposes of explaining the basis of their opinion,

but not as substantive evidence of the facts themselves. Here, as noted

above, there is no evidence the trial court relied on Dr. Stein’s factual basis

as substantive evidence of those facts.

Appellant also overlooks that we addressed a similar issue in Prendes.

Yet, Appellant argues that Prendes, despite the fact that it dealt with

essentially the same issue raised here (i.e., SVP status based on unproven

allegations contained in police report, affidavit of probable cause), is

distinguishable on several grounds. Specifically, Appellant argues that in

Prendes, but not here, (i) the defense read into the record the entire guilty

plea colloquy; (ii) most of the facts relied upon by the expert were also the

subject of sworn testimony at trial and cross-examination, and (iii) appellant

failed to state with specificity which unproven facts were challenged.

A review of Prendes disposes of these alleged differences. In

Prendes, this Court quoted with approval the following excerpt from the

trial court opinion:

It was not necessary that [the expert] read the guilty plea

colloquy and trial testimony before forming her opinion. The

facts upon which an expert relies can be disclosed either by

asking the expert to “assume the truth of facts the expert has

seen or read” or by asking a “hypothetical question.” See

Pa.R.E. 705, comment. It is the [c]ourt, not the expert, [which]

finds the facts and makes the ultimate determination whether a

defendant is an SVP. In essence, [the expert] assumed,

hypothetically, that [appellant] had committed the criminal

conduct set forth in the documents she reviewed and rendered

her opinion that, based on those assumed facts, [appellant]

[was] an SVP. The [c]ourt, as the finder of fact, determined

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whether the facts assumed by [the expert] were true and

weighed her opinion accordingly.

Prendes, 97 A.3d at 362.

The same can be said here. Dr. Stein assumed that Appellant had

committed the criminal conduct set forth in the documents he reviewed, and

based on the information he had, he concluded that Appellant was an SVP.

Dr. Stein did not change his assessment despite being challenged as to the

reliability of some of the facts he assumed. After considering Dr. Stein’s

testimony, Appellant’s expert testimony, and counsel’s arguments, the trial

court found that the Commonwealth proved Appellant met the criteria for

SVP status. We see no error or abuse of discretion in the trial court’s

findings and conclusions.

Appellant, throughout his brief, stated that police reports and affidavits

of probable cause are not reasonably relied upon by experts in the field.

See, e.g., Appellant’s Brief at 37 (emphasis added). We disagree. The trial

court noted that “[a]lthough Dr. Stein did not testify that the facts in the

documents on which he relied in conducting his SVP analysis were the type

of facts reasonably relied on by experts in his field, the fact that such

documents are relied on by representatives of the [SOAB] is beyond

reproach.” Trial Court Opinion, 9/10/14, at 8 (emphasis added) (citing

Prendes). We agree. “[A]rrest warrant, affidavit of probable cause, police

reports, charge sheet, statements by the victim, etc. . . . are [records]

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typically relied on in SOAB evaluations.” Prendes, 97 A.3d at 362 (citing

Pa.R.E. 703, 705) (emphasis added).9 Prendes, therefore, is controlling.

In Prendes,

Appellant challenge[d] his SVP status as based on unreliable

hearsay. Specifically, Appellant assert[ed] the SOAB expert

witness formed her opinion using “unproven allegations”

contained in police reports, the affidavit of probable cause,

polygraph examination reports, and other documents of record.

Appellant insists the information contained in these documents

made the SOAB expert’s opinion inadmissible because the

information had not been established by testimony at the SVP

hearing or by admission of Appellant. . . . Appellant conclude[d]

the court abused its discretion by allowing the SOAB expert

witness to render an opinion based on unproven allegations,

over Appellant’s objections, and he is entitled to a new SVP

hearing as a result.

Prendes, 97 A.3d at 355.

We disagreed and noted:

The SVP assessment is statutorily defined. 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

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9

In his brief, Appellant also criticizes Prendes for “blurring the line between

reasonable reliance and . . . typical reliance[, which] is inaccurate and

contrary to the rules of evidence.” Appellant’s Brief at 31. While the expert

used the word “typically” as opposed to “reasonably,” it is clear what the

expert meant. The mere fact that this Court in Prendes did not comment

on the expert’s word choice does not mean that we blurred the line between

the two words, or that we do not appreciate the difference. Despite

Appellant’s criticism, Prendes is consistent with relevant statutes and

caselaw, as opposed to Appellant’s position on this matter. Appellant is in

fact suggesting that while experts typically rely on police reports and

affidavits of probable cause for purposes of SVP determinations, such

reliance is unreasonable. As noted, relevant statutes and binding caselaw do

not support Appellant’s argument.

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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). 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 [a] 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; In re D.Y., [34

A.3d 177 (Pa. Super. 2011), appeal denied, 47 A.3d 848 (Pa.

2012)]. 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 basis for 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 cross-examination.” See In re D.Y., supra

at 183. Opposing counsel bears the burden of exposing and

exploring “any weaknesses in the underpinnings of the expert's

opinion.” See id.

Prendes, 97 A.3d at 360-61.

Thus, police reports and affidavits of probable cause are admissible for

purposes of a SVP determination despite issues of reliability. The reliability

of the information contained in these documents can be attacked at the SVP

hearing by defense counsel, but such challenges involve the weight of the

evidence not its admissibility. Meals, supra; Prendes, supra; Fuentes,

supra.

Appellant next argues that the expert’s opinion is based only on two

unproven facts, non-consent and frequency of sexual contacts. This

challenge does not fare any better than the previous one.

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Regarding consent, Appellant challenges the reliability of some

statements victim made to the police during the investigation (i.e., “The

victim told police that when this first started, she did not know what to do

and she was scared.” N.T. SVP Hearing, 6/16/14, at 22). Because these

were unproven allegations, Appellant argues, the expert improperly

concluded that victim did not consent to sexual intercourse. In fact,

Appellant argues, “there is no evidence to show that the [14-year-old] victim

did not want to have sex,” Appellant’s Brief at 45-46, with her biological

father, 23 years her senior.

Appellant was 37 years old when he first had sexual contact with the

victim, Appellant’s biological daughter, 14 years old at that time. N.T. SVP

Hearing, 6/16/14, at 18. The expert opined the relationship was not

consensual based (i) on the victim’s age, (ii) the above-described

statements she gave to the police, and (iii) it was not a dating relationship,

id. at 17-18, 22, 34-35, 37-38. The trial court noted, and we agree, that

even if the expert had discounted the alleged statements victim gave to the

investigators, the expert had “reliable facts” sufficient to conclude Appellant

is in fact a sexually violent predator (i.e., victim, due to her age, was a

physically and emotionally immature person, who could not legally consent

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to sexual intercourse).10 See Trial Court Opinion, 9/10/14, at 10-11; see

also N.T. SVP Hearing, 6/16/14, at 18, 22, 34-35, 37-38.

Additionally, Appellant does not explain how a minor’s consent to

sexual intercourse is legally irrelevant (rectius, it is not a defense to

statutory sexual assault, see Commonwealth v. Castelhun, 889 A.2d

1228, 1234 (Pa. Super. 2005)), yet factually relevant for purposes of the

SVP determination. Nor does Appellant point to anything in the Diagnostic

and Statistical Manual of Mental Disorders (DSM) or his own expert’s

testimony suggesting that for purposes of a psychological diagnosis and/or

SVP assessment a 14-year-old child is capable of consenting to sexual

intercourse with her father, a 37-year-old man.11

Regarding the frequency of the assaults, the expert stated that the

sexual abuse was “ongoing” and continued for several years. Id. at 20. The

expert based his conclusion on statements Appellant allegedly made to the

police in connection with the investigation (“Appellant related that it

____________________________________________

10

The trial court also noted that “[t]he fact that the relationship between

Appellant and the victim was ‘not a dating relationship’ was also a significant

factor leading to Dr. Stein’s conclusion that the victim did not consent.” Trial

Court Opinion, 9/10/14 at 11.

11

In fact, the DSM defines paraphilia as “any intense and persistent interest

other than sexual interest in genital stimulation or preparatory fondling with

phenotypically normal, physically mature, consenting human partners”).

Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (2013),

685. Dr. Stein defined paraphilia as “any inten[se] and persistent sexual

interest in other than physically mature consenting partners.” N.T. SVP

Hearing, 6/16/14, at 21.

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J-A03030-15

occurred on a weekly basis while at the residence in Bonneauville as well as

the current address in Littlestown, PA since before that. He relayed that this

continued from the time she was 14 in 2007 until August of 2013.” N.T. SVP

Hearing, 6/16/14, at 32-33). According to Appellant, the statements do “not

specifically indicate that it occurred on a weekly basis throughout that entire

timeframe.” Id. at 33. The expert conceded that much, but did not find the

qualification to be of any particular relevance. Id. We agree. It is clear

from the record that there were “numerous incidents,” Trial Court Opinion,

9/10/14, at 1, or that a “large number of offenses” occurred, N.T. SVP

Hearing, 6/16/14, at 24, which is not contested by Appellant. It is unclear,

however, how Appellant’s timeframe qualification changes the expert’s

conclusion or the court’s analysis. Absent any argument by Appellant, we

decline to address this matter any further.

In light of the foregoing, we conclude the trial court did not err in

admitting Dr. Stein’s opinion and the factual basis upon which the opinion

was based.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/27/2015

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