Commonwealth v. Fuentes

DISSENTING OPINION BY

BENDER, J.:

¶ 1 I respectfully dissent. In this case, the trial court branded the defendant with the proverbial “mark of Cain,” designating him a sexually violent predator based on the opinion of an “expert” whose conclusions often descend to speculation and whose testimony would not pass muster in a civil tort action. Designation of a witness as an expert is not an evidentiary wild card and does not render the witness’s opinions inviolable. Opinions for which the witness cannot articulate objectively verifiable factual support are not competent evidence and are not legally sufficient to sustain any determination in a court of law. See Viener v. Jacobs, 834 A.2d 546, 558 (Pa.Super.2003) (“While an expert’s opinion need not be based on absolute certainty, an opinion based on mere possibilities is not competent evidence.”). See also Pa.R.E. 703. To the extent the trial court’s disposition rests on such opinions, it ignores the Rules of Evidence, conflates guesswork with fact, and imposes a permanent stigma based on insufficient evidence. Fuentes’s challenge on this basis is meritorious and, in my opinion, should be granted.

¶ 2 A challenge to the sufficiency of the evidence is a question of law of which our scope of review is plenary and our standard of review, de novo. See Commonwealth v. Meals, 590 Pa. 110 , 912 A.2d 213, 218 (2006). “In reviewing the sufficiency of the evidence regarding the determination of SVP status, we will reverse the trial court only if the Commonwealth has not presented clear and convincing evidence sufficient to enable the trial court to determine that each element required by the statute has been satisfied.” Commonwealth v. Plucinski, 868 A.2d 20, 25 (Pa.Super.2005). The reviewing court must view the evidence in the light most favorable to the Commonwealth. Id. We may not reweigh the evidence or substitute our judgment for that of the trial court. Id. The “clear and convincing” evidence standard requires evidence that is “so clear, direct, weighty and convincing” as to enable the factfinder to reach “a clear conviction, without hesitancy, of the truth *946 of the precise facts” at issue. 1 Id. The factfinder is free to believe all, part or none of the evidence presented. Commonwealth v. Haughwout, 837 A.2d 480, 484 (Pa.Super.2003).

¶ 3 An SVP is defined as a “person who has been convicted of a sexually violent offense as set forth in [42 Pa.C.S.] section 9795.1 (relating to registration) and who is determined to be a sexually violent predator under section 9795.4 (relating to assessments) due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.” Id. 2 This definition requires that testimony adduced at the SVP hearing satisfy three distinct elements. See Commonwealth v. Dixon, 907 A.2d 533, 536 (Pa.Super.2006). To establish a “mental abnormality” or “personality disorder,” the evidence must show that the defendant suffers a “congenital or acquired condition ... that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons.” 42 Pa.C.S. § 9792. Moreover, the evidence must establish that the defendant’s conduct was “predatory.” See Dixon, 907 A.2d at 536 . Predatory conduct is defined as an “act directed at a stranger or at a person with whom a relationship has been initiated, established, maintained or promoted, in whole or in part, in order to facilitate or support victimization.” Meals, 912 A.2d at 218 -19 (quoting 42 Pa.C.S. § 9792). Finally, the evidence must demonstrate the defendant’s propensity to re-offend. See Dixon, 907 A.2d at 536 (quoting Commonwealth v. Bey, 841 A.2d 562, 566 (Pa.Super.2004) (“This Court has determined that the ‘salient inquiry* for the trial court is the ‘identification of the impetus behind the commission of the crime,’ coupled with the ‘extent to which the of *947 fender is likely to reoffend.’ ”)). Consequently, “every Commonwealth expert who testifies that an individual is an SVP must examine, and render an opinion on, whether the individual is likely to re-offend.” Id. at 589 .

¶ 4 I do not agree with the Majority that Dr. Ziv’s testimony and diagnosis, which was based solely upon Fuentes’s criminal record, establishes each of these elements of the SVP classification. Although the trial court apparently found Dr. Ziv credible, elements of her testimony are not legally competent and cannot, as a matter of law, be deemed “clear and convincing evidence.” This issue stands at the heai't of Fuentes’s claim. Brief for Appellant at 26-27 (“Dr. Ziv’s opinion, by default, is simply her best guess — she looked at the very limited record provided, considered limited factors, and then, out of little more than thin air, opined that appellant was likely to engage in future predatory sexually violent offenses following his release.”).

¶ 5 I recognize that generally the opinions of an expert are themselves evidence and that a defendant’s challenge to them is more usually to be directed to evidentiary weight than to sufficiency. See Commonwealth v. Feucht, 955 A.2d 377, 382 (Pa.Super.2008) (citing Meals, 912 A.2d at 223 ) (“[A] Board report or opinion that the individual has an abnormality indicating the likelihood of predatory sexually violent offenses is itself evidence.”). Nevertheless, to the extent the assessment of the Board member tendering the SVP assessment constitutes expert opinion, see Meals, 912 A.2d at 224 (quoting McMahon v. Young, 442 Pa. 484 , 276 A.2d 534, 535 (1971)), that assessment and the Board member’s testimony concerning it must conform to the Rules of Evidence governing expert opinion testimony.

¶ 6 Rule 703 provides affirmative direction on this point, prescribing “a threshold for admission of expert testimony dependant upon the extent to which the expert’s opinion is based on facts and data[.]” Helpin v. Trustees of University of Pennsylvania, 969 A.2d 601, 617 (Pa.Super.2009).

Rule 703. Bases of opinion testimony by experts

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

Pa.R.E. 703. Consistent with this Rule, “expert testimony is incompetent if it lacks an adequate basis in fact.” Helpin, 969 A.2d at 617 (citing Viener, 834 A.2d at 558 ). The Rule provides specifically as follows:

“While an expert’s opinion need not be based on absolute certainty, an opinion based on mere possibilities is not competent evidence. This means that expert testimony cannot be based solely upon conjecture or surmise.” [Viener, 834 A.2d at 546 ]. Rather, “[an expert’s] assumptions must be based upon such facts as the jury would be warranted in finding from the evidence.” Id.

Helpin, 969 A.2d at 617 .

¶ 7 Only if evidence is competent to begin with can it be deemed “so clear, direct, weighty and convincing” as to enable the factfinder to reach “a clear conviction, without hesitancy, of the truth of the precise facts” at issue. Directly stated, an SVP designation can only be based on competent evidence that each of the specified elements of section 9795.4(e)(3) is es *948 tablished — efforts by the Commonwealth to cloak inadequately substantiated assertions under the mantle of expert opinion will not suffice for this purpose. Just as the opinion of an expert in any other proceeding, either civil or criminal, is subject to disqualification if rendered without an adequate basis derived from demonstrable facts, so must the opinion of an SVP Board member or other expert conducting an evaluation of a sex offender.

¶ 8 Bearing this standard in mind, I do not find sufficient competent evidence to support Dr. Ziv’s testimony on several critical points and, on others, I find her inferences contradicted by facts of record. As a consequence, I would find her opinion deficient as to both the determination of mental abnormality of antisocial personality disorder and the likelihood that Fuentes is “likely to engage in predatory sexually violent offenses.” 42 Pa.C.S. § 9792. As a starting point, I note that in reaching an assessment of Fuentes’s potential for future sexually predatory behavior, Dr. Ziv opined that the absence from his record of any prior sex offense is “totally irrelevant in terms of criteria for a specific paraphi-lia.” 3 N.T., 2/29/08, at 25. Attempting to buttress her opinion on cross-examination, Dr. Ziv then offered a guess on which the trial court expressly relied in reaching its own determination: “it is unlikely that [Fuentes], this is the first and only time that he’s acted in a deviant sexual way.” Trial Court Opinion, 10/3/08, at 2-3 (quoting N.T., 2/29/08, at 25-26) (emphasis added). Unfortunately, Dr. Ziv’s assertions on this point, which bears on the ultimate issue in her evaluation, are the rankest sort of speculation. Nothing in the background information the doctor cited offered any basis for the suggestive testimony she rendered, which appears to reach a conclusion based not on what the record showed but instead on what it did not show. N.T., 2/29/08, at 24 (“[M]y not being able to render a diagnosis of a paraphi-lia in this case doesn’t mean he doesn’t have a paraphilia.”). Nevertheless, this freighted appraisal appears to be the only factor beyond Fuentes’s guilty plea that Dr. Ziv acknowledged in reaching her determination that Fuentes was likely to engage in future acts of sexual violence. N.T., 2/29/08, at 21-22. Based upon our case law and the Rules of Evidence, this simply is not enough for a competent assessment.

¶ 9 Concerning the second of the statutory criteria, i.e., the extent to which the defendant is afflicted by a personality disorder that makes him more likely to re-offend, Dr. Ziv conceded that she examined only Fuentes’s criminal records, which included three juvenile adjudications, one adult conviction and two other adult arrests in which the charges were later dismissed. Not surprisingly, these records suggested a propensity toward criminal acts. Indeed, Dr. Ziv based her conclusion of Antisocial Personality Disorder on little more than the three juvenile adjudications, the first committed when Fuentes was only 12 and the remaining two which resulted from “unauthorized use of a motor vehicle.” 4 . Although the crimi *949 nal report on which Dr. Ziv relied sets forth the charges and their respective dispositions, there are no factual allegations to accompany the report. Id. at 21 (“Q. You were provided some information as to what the outcome was, either adjudication or convictions, correct, but you were not actually provided any of the police reports or documents from any of his other arrests, correct? ... A. I believe that I was not”). Moreover, Dr. Ziv gave no indication of having benefited from any form of pre-disposition investigation germane either to the juvenile offenses or to Fuentes’s single adult conviction. In addition, she conceded that she had no access to Fuentes’s school records or any information on his juvenile placements. Id. at 22. Having reviewed the same materials that Dr. Ziv had available, I cannot discern any of the facts underlying Fuentes’s adjudications or conviction — and neither could Dr. Ziv. Consequently, the opinion she derived from them that Fuentes suffers from Antisocial Personality Disorder is questionable and can be sustained only by reference to broad generalizations based on assertions of fact that are either incorrect or unsubstantiated.

¶ 10 This deficiency is evident in Dr. Ziv’s discussion of the criteria from the DSM-IV on which she relied to reach her conclusion that Fuentes displays Antisocial Personality Disorder and is therefore rendered more likely to re-offend. Dr. Ziv found that Fuentes displayed “a pervasive pattern of disregard for and violation of the rights of others occurring since age 15 years, as indicated by:” (1) “Appellant’s failure to conform to social norms with respect to lawful behaviors as indicated by repeatedly performing acts that are grounds for arrest;” (2) “Deceitfulness,” as indicated by “repeated lying, use of aliases or conning others for personal profit or pleasure;” (3) Impulsivity or failure to plan ahead (i.e., “Mr. Fuentes’[s] life has been characterized by impulsivity with respect to his unlawful behaviors”); (4) “[Rjeckless disregard for safety of self or others” based upon his conviction in the within action; and, (5) “Consistent irresponsibility,” as indicated by “repeated failure to sustain consistent work behavior or honor financial obligations.” N.T., 2/29/08, at 9-11. Dr. Ziv supported her conclusion further by reference to Fuentes’s adjudication of delinquency at age 12, which she deemed (admittedly without access to the details of the offenses at issue) to constitute evidence of a “conduct disorder before age 15.” Id. at 11.

¶ 11 Considered closely, Dr. Ziv’s discussion of these factors appears to be an analytical house of cards. Concerning Fuentes’s “repeatedly performing acts that are grounds for arrest,” Dr. Ziv failed to draw any connection between Fuentes’s acts and the likelihood that he will commit another sex offense, which is the essence of the evaluation she undertook. See Meals, 912 A.2d at 215-16 ; Dixon, 907 A.2d at 536 . While Fuentes had three adjudications as a juvenile and one conviction as an adult, these crimes consisted substantially of misdemeanor property violations (e.g., unauthorized use of a motor vehicle). In the absence of an explanation from Dr. Ziv of the specific predictive value of these offenses to Fuentes’s purported predisposition to commit additional sex offenses, the extent to which her conclusion constitutes competent evidence is debatable at best. See Helpin, 969 A.2d at 617 (“While an expert’s opinion need not be based on absolute certainty, an opinion based on mere possibilities is not competent evidence.”). I fail to discern how joyriding in cars, whether stolen or not, establishes a *950 defendant’s propensity to commit sex offenses.

¶ 12 Concerning Dr. Ziv’s second conclusion, regarding “[d]eeeitfulness,” as indicated by “repeated lying, use of aliases or conning others for personal profit or pleasure,” (emphasis added), the records available to the doctor offer no documentation of the specific reasons that Fuentes used the two aliases she described. Consequently, Dr. Ziv had no way of knowing whether Fuentes’s use of aliases was motivated by “personal profit or pleasure” as required by the statute or — more likely— the defendant’s simple desire to avoid punishment for his conduct. Thus, there is no basis in fact for the doctor’s conclusion that this cited factor supports her determination of Anti-Social Personality Disorder. See id. (“[E]xpert testimony cannot be based solely upon conjecture or surmise.”); Viener, 834 A.2d at 558 (“While an expert’s opinion need not be based on absolute certainty, an opinion based on mere possibilities is not competent evidence.”).

¶ 13 Concerning the fourth cited factor, “repeated failure to sustain consistent work behavior or honor financial obligations,” Dr. Ziv admitted that she had no information concerning Fuentes’s employment “even though he was reportedly employed at the Washington Distribution Center at the time of his arrest.” N.T., 2/29/08 at 10. In fact, the certified record establishes that Fuentes was employed full time at the Washington Distribution Center. Thus, in this regard Dr. Ziv’s conclusion appears to discount a fact highly material to her analysis. See id. I can conceive of no valid reason for a sworn expert to dismiss critical information so summarily. The result is apparent in her conclusion — which is simply wrong.

¶ 14 Lastly, to the extent that Dr. Ziv concluded that Fuentes’s adjudication of delinquency at the age of 12 constituted “evidence of Conduct Disorder with onset before age 15 years,” I find no substantiation, either in Dr. Ziv’s professional assessment or in the record. Declaring a proposition does not make it so — even for an expert witness. See Helpin, 969 A.2d at 617 (quoting Viener, 834 A.2d at 546 ) (reaffirming that “[an expert’s] assumptions must be based upon such facts as the jury would be warranted in finding from the evidence”). By Dr. Ziv’s own admission, she had no information on the specific circumstances underlying Fuentes’s delinquent acts or his motivation in having perpetrated them. To suggest, on the basis of such exceptionally scant consideration, that a defendant suffered from “Conduct Disorder” at twelve years old is simply untenable. Any number of 12-year-olds find themselves in juvenile court for any number of reasons. Absent substantially more rigorous analysis of their situations than Dr. Ziv provided here, I find the application of any label legally indefensible.

¶ 15 The foregoing discrepancies in Dr. Ziv’s testimony are significant, and in my opinion, undermine the evidentiary competence of her related conclusions. Her analysis is thin and her conclusions unsubstantiated. Given the failure of Dr. Ziv’s testimony and report to comport with a standard of competence that the Rules of Evidence require even of expert testimony in civil litigation, I would not find sufficient competent evidence to sustain the trial court’s SVP determination. See generally, Commonwealth v. Lipphardt, 841 A.2d 551, 554 (Pa.Super.2004) (providing, “the SVP classification does not automatically apply to an individual convicted of a sexual offense”). Thus, I would reverse the trial court’s designation of Fuentes as a Sexually Violent Predator and discharge all requirements attendant to that designation. *951 Because the Majority declines this course, I must respectfully dissent.

. The Court's application of this heightened burden of proof arises from the coalescence of social policy with the constitutional imperative of due process. See Commonwealth v. Williams, 557 Pa. 285 , 733 A.2d 593, 605 (1999) ("This Court has mandated an intermediate standard of proof — 'clear and convincing evidence’ — when the individual interests at stake in a state proceeding are both ‘particularly important' and 'more substantial than mere loss of money.' Notwithstanding ‘the state’s civil labels and good intentions,' the Court has deemed this level of certainty necessary to preserve fundamental fairness in a variety of government-initiated proceedings that threaten the individual involved with 'a significant deprivation of liberty' or 'stigma.' '').

Because potentially dire consequences follow determination and registration as an SVP, see Williams, 733 A.2d at 607 ("One's livelihood, domestic tranquility and personal relationships are unquestionably put in jeopardy by the notification provisions.”), application of and adherence to the "clear and convincing evidence” standard is imperative. See also id. at 606 (reasoning that because the assessment of the future dangerousness of a particular registrant is "an undertaking 'involving substantial uncertainty!,]' ” the risk to the defendant of an incorrect designation must be limited to the extent possible consistent with the state’s competing interest "in protecting its citizens by giving prompt notification to potential victims and relevant caregivers”). Thus, to affirm a determination of SVP status, "we must be able to conclude that the factfinder found clear and convincing evidence that the individual is a sexually violent predator.” Commonwealth v. Krouse, 799 A.2d 835, 842 (Pa.Super.2002) (en banc) (overruled on other grounds in Meals, 912 A.2d at 223 ).

. See also Krouse, 799 A.2d at 842 ("[T]he SVP classification does not automatically apply to an individual convicted of a sexual offense or even to individuals who have molested a child. Rather, the SVP classification has been specifically limited by the legislature to those offenders who have a ‘mental abnormality or personality disorder that makes [them] more likely to engage in predatory sexually violent offenses.' ”).

. The current version of the DSM-IV, describes paraphilias as conditions "characterized by recurrent, intense sexual urges, fantasies, or behaviors that involve unusual objects, activities, or situations and cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.” American Psychiatric Association. (2000). Diagnostic and statistical manual of mental disorders (4th ed., text rev.). Washington, DC: Author., p. 535.

. Unauthorized Use of a Motor Vehicle, 18 Pa.C.S. § 3928, is defined as “operating] the automobile, airplane, motorcycle, motorboat, or other motor-propelled vehicle of another *949 without consent of the owner.” It is graded as a second degree misdemeanor.