J-S60039-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AARON M. NAZARIO :
:
Appellant : No. 436 WDA 2017
Appeal from the Order February 14, 2017
In the Court of Common Pleas of McKean County
Criminal Division at No(s):
CP-42-CR-0000120-2016
BEFORE: OLSON, DUBOW, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 18, 2017
Appellant Aaron M. Nazario appeals from the February 14, 2017, Order
entered in the Court of Common Pleas of McKean County classifying him as a
sexually violent predator (“SVP”) under the Sex Offender Registration and
Notification Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.10–9799.41. We affirm.
On May 26, 2016, Appellant entered into a negotiated guilty plea to a
single count of indecent assault of a person less than 13 years of age, a
misdemeanor of the first degree.1 As part of his plea, the Commonwealth
dismissed the remaining charges set forth in the Criminal Information.
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1
18 Pa.C.S.A. § 3126(a)(7). The victim was born in 2005 and the offense
date occurred sometime within 2012-2014 when the victim was between the
ages of seven and nine. N.T. Sentencing, 2/14/17, at 9; N.T. SVP Hearing,
12/23/16, at 54. The victim’s mother was appellant’s paramour. N.T. SVP
Hearing, 12/23/16, at 32.
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* Former Justice specially assigned to the Superior Court.
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Pursuant to the plea, Appellant was sentenced to eighteen (18) months to
thirty-six (36) months in prison with credit for time served of 126 days.
On December 23, 2016, a Sexually Violent Predator (SVP) Hearing was
held following which the trial court determined Appellant met the criteria to
be classified as an SVP and would be required to be a lifetime registrant.2
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2
This Court has explained the process by which a trial court makes a SVP
determination as follows:
After a person has been convicted of an offense listed in [42
Pa.C.S.A. § 9799.14], the trial [court] then orders an
assessment to be done by the [SOAB] to help determine if that
person should be classified as a[n SVP. An SVP] is defined as a
person who has been convicted of a sexually violent offense ...
and who [has] a mental abnormality or personality disorder that
makes the person likely to engage in predatory sexually violent
offenses. In order to show that the offender suffers from a
mental abnormality or personality disorder, the evidence must
show that the defendant suffers from 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.
Moreover, there must be a showing that the defendant's conduct
was predatory.... Furthermore, in reaching a determination, we
must examine the driving force behind the commission of these
acts, as well as looking at the offender's propensity to reoffend,
an opinion about which the Commonwealth's expert is required
to opine. However, the risk of re-offending is but one factor to
be considered when making an assessment; it is not an
independent element.
Commonwealth v. Hollingshead, 111 A.3d 186, 189–90 (Pa.Super.
2015), appeal denied, 633 Pa. 763, 125 A.3d 1199 (2015) (citation
omitted). In addition,
(Footnote Continued Next Page)
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Appellant filed a timely notice of appeal on March 14, 2017, and the
trial court issued its Order pursuant to Pa.R.A.P. 1925(b) on March 20, 2017.
Appellant filed his Statement of Errors Complained of on Appeal on March
24, 2017, wherein he challenged the admissibility of testimony presented by
Sexual Offenders Assessment Board (SOAB) Investigator Supervisor Paul
Everett and SOAB expert Brenda Manno. Specifically, Appellant asserted the
following:
1. [Appellant] appeals whether the trial [c]ourt erred in
admitting the investigation report of Paul Everett at the hearing
to determine whether [Appellant] meets the criteria as a
sexually violent predator on December 23, 2016.
_______________________
(Footnote Continued)
[w]hen performing an SVP assessment, a mental health
professional must consider the following 15 factors: whether the
instant offense involved multiple victims; whether the defendant
exceeded the means necessary to achieve the offense; the
nature of the sexual contact with the victim(s); the defendant's
relationship with the victim(s); the victim(s)' age(s); whether
the instant offense included a display of unusual cruelty by the
defendant during the commission of the offense; the victim(s)'
mental capacity(ies); the defendant's prior criminal record;
whether the defendant completed any prior sentence(s);
whether the defendant participated in available programs for
sexual offenders; the defendant's age; the defendant's use of
illegal drugs; whether the defendant suffers from a mental
illness, mental disability, or mental abnormality; behavioral
characteristics that contribute to the defendant's conduct; and
any other factor reasonably related to the defendant's risk of
reoffending. See 42 Pa.C.S.A. § 9799.24(b).
Id. at 190.
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a. [Appellant] asserts the report submitted by Paul Everett
included allegations from the initial police report,
including witness statements and facts involving
charges for which [Appellant] was not convicted, and
that no review of the actual transcript of the guilty plea,
which included “agreed upon facts” to substantiate the
guilty plea, was considered.
b. [Appellant] argues that while the determination of
whether [Appellant] meets the criteria to be classified
as a sexually violent predator is a collateral
consequence to a conviction for a sexually violent
offense, that the rules of evidence and procedural rules
apply to this proceeding, and that [Appellant] was
prejudiced by the [c]ourt’s consideration of facts and
statements, admitted through the report of Paul Everett
and subsequent testimony of Brenda Manno, which
were either irrelevant to the charges for which
[Appellant] was convicted, or sometimes wholly
inconsistent with facts of record through the guilty plea
or the trial transcript of another matter, which was also
considered by the [c]ourt in making its ruling.
2. [Appellant] appeals whether the [c]ourt erred in permitting
Brenda Manno to testify and render an expert opinion with
regard to [Appellant’s] classification as a sexually violent
predator, when the materials relied upon by Ms. Manno in
reaching her opinion were inaccurate and/or inconsistent with
the facts of record in [Appellant’s] matters pending before the
[c]ourt.
a. [Appellant] asserts that Ms. Manno’s opinion, which
included consideration of the nature of the offense(s),
whether the victim(s) were known to [Appellant], and
several other considerations as outlined on the record
at the time of hearing on December 23, 2016, was
based on facts that were purely hearsay and not subject
to confrontation or credibility determinations by Ms.
Manno or the [c]ourt, and that were sometimes
inconsistent with either the trial record from
[Appellant’s] prior case or the facts agreed upon
through entry of a plea for the matter presently before
the [c]ourt.
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3. [Appellant] appeals the [c]ourt’s ruling, by Order dated
December 23, 2016, which found that the Commonwealth had
presented by clear and convincing evidence that [Appellant]
meets the criteria as a sexually violent predator.
a. [Appellant] asserts that Ms. Manno’s prior assessment
of [Appellant] in another matter, where she indicated that
he did not meet the criteria as a sexually violent predator,
calls into significant question whether the Commonwealth
could prove that [Appellant] had engaged in predatory
behavior or that he suffers from a mental abnormality,
which would be necessary in order to find that [Appellant]
meets the criteria to be classified as a sexually violent
predator.
Statement of Errors Complained of on Appeal, filed 3/24/17, at ¶¶ 1-3.
In his appellate brief, Appellant presents the following issue for our
review:
(1) Did the trial court err in finding, by clear and convincing
evidence, that Appellant meets the criteria to be classified
as a sexually violent predator?
Brief for Appellant at 4.
A challenge to a trial court's SVP designation is a challenge to the
sufficiency of the evidence, for which our standard of review is de novo and
our scope of review is plenary. Commonwealth v. Meals, 510 Pa. 110,
119, 912 A.2d 213, 218 (2006). When reviewing a trial court's SVP
determination, we must view the evidence in a light most favorable to the
Commonwealth and may not re-weigh the evidence or substitute our
judgment for that of the trial court. Id. The question for the trial court is
whether the Commonwealth's evidence establishes that the defendant has a
mental abnormality or personality disorder that makes him or her likely to
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engage in predatory sexually violent offenses. Commonwealth v. Brooks,
7 A.3d 852, 863 (Pa.Super. 2010). We will reverse an SVP determination
only if the Commonwealth did not present “clear and convincing evidence
that each element of the statute has been satisfied.” Commonwealth v.
Baker, 621 Pa. 401, 24 A.3d 1006, 1033 (Pa.Super. 2011), aff'd, 78 A.3d
1044 (Pa. 2013).
Appellant does not dispute that his guilty plea to a charge of Indecent
Assault under 18 Pa.C.S.A. 3126(a)(7) constitutes a conviction of a sexually
violent offense under 42 Pa.C.S.A. § 9799.14. Brief for Appellant at 17.
Instead, “Appellant focuses his argument on the assertion that the SOAB
completed [its] investigation and assessment based solely on the unproven
allegations contained in the initial police filings and reports, rather than in
review of actual facts of record proven at trial or in a guilty plea transcript. .
. .” Brief for Appellant at 19 (footnote omitted). The focal point of
Appellant’s argument essentially challenges the admissibility of Mr. Everett’s
report and of Ms. Manno’s expert opinion at the SVP hearing.
“To preserve a claim of error for appellate review, a party must make
a specific objection to the alleged error before the trial court in a timely
fashion and at the appropriate stage of the proceedings; failure to raise such
objection results in waiver of the underlying issue on appeal.”
Commonwealth v. Akbar, 91 A.3d 227, 235 (Pa.Super. 2014), reversed
on other grounds, 111 A.3d 168 (Pa. 2015) (citations omitted); Pa.R.A.P.
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302(a) (Issues not raised before the trial court are waived and cannot be
advanced for the first time on appeal). At the SVP hearing, Appellant did not
specifically object to the introduction into evidence of Mr. Everett’s report, to
Mr. Everett’s testimony with regard thereto, or to Ms. Manno’s testifying as
an expert witness. To the contrary, Appellant affirmatively stated “no
objection” to both the admissibility of the investigative materials and report
Mr. Everett sent to Ms. Manno and to his ensuing testimony. N.T. SVP
Hearing, 12/23/16, at 10-13, 15. In addition, Ms. Manno’s curriculum vitae
was admitted into evidence without objection, and the parties stipulated that
Ms. Manno was qualified to offer an expert opinion as to whether Appellant
met the criteria of a SVP. Id. at 28. Also, Appellant asked to have admitted
as “Defense Exhibit Number A” the initial report Ms. Manno had prepared in
June of 2016 wherein she did not find Appellant to be an SVP. Id. at 41.
Because he failed to raise specific objections regarding the foregoing
before the trial court, Appellant cannot now complain that the court erred in
admitting the evidence. Akbar, supra. However, Appellant did lodge a
“blanket objection” regarding Ms. Manno’s anticipated reliance upon
“hearsay and unproven allegations in making her assessment based on Mr.
Everett’s testimony as to what he forwarded her.” N.T. SVP Hearing,
12/23/16, at 28. In addition, Appellant objected to the admission of
“Commonwealth’s Exhibit 4,” Ms. Manno’s second report which included
information provided to her by Mr. Everett, on the grounds that “she
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testified about her reliance of [sic] hearsay to render the opinion.” Id. at
39-40. To the extent these objections have preserved Appellant’s challenge
to the trial court’s admission into evidence of Ms. Manno’s second report and
her accompanying opinion based upon it and rendered to a reasonable
degree of professional certainty that he is an SVP, we note that Ms. Manno’s
opinion constitutes evidence. “[A] Board report or opinion that the individual
has an abnormality indicating the likelihood of predatory sexually violent
offenses is itself evidence. Also, while a defendant is surely entitled to
challenge such evidence by contesting its credibility or reliability before the
SVP court, such efforts affect the weight, not the sufficiency of the
Commonwealth's case. Accordingly, they do not affect our sufficiency
analysis.” Commonwealth v. Feucht, 955 A.2d 377, 382 (Pa.Super. 2008)
(citations omitted). Furthermore, “[SORNA] does not limit the expert’s
consideration of information only to that admitted at trial or at the guilty
plea proceedings.” Commonwealth v. Prendes, 97 A.3d 337, 360
(Pa.Super. 2014).
At the SVP hearing, Ms. Manno testified that when she completed her
initial evaluation of Appellant in June of 2016, he had a prior criminal
conviction from 2015 for his sexual assault of a twenty-three year old victim.
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N.T. SVP Hearing, 12/23/16, at 38.3 Ms. Manno determined that although
Appellant met the definition of predatory, she did not find him to be an SVP
in her initial report “because he lacked the mental abnormality or personality
diagnosis at that time” as “there was no time span of a period of six months
or more where he had engaged in any behavior sexually.” Id., at 38-39.
Notwithstanding, at the time of the SVP hearing on December 23, 2016, and
after considering the statutory factors following Appellant’s guilty plea
herein, she opined he did meet that criteria. Id. at 39, 49. Appellant did
not present expert testimony to contest Ms. Manno’s conclusions, although
he thoroughly cross-examined her regarding her assessment and in doing so
highlighted her contrary findings in her initial report. Id. at 40-54.
In Prendes, this Court stated that “[o]nce expert testimony has been
admitted, the rules of evidence then place the full burden of exploration of
facts and assumptions underlying the testimony of an expert witness
squarely on the shoulders of opposing counsel[],” who “bears the burden of
exposing and exploring “‘any weaknesses in the underpinnings of the
expert’s opinion.’” Id. at 358 (citation omitted). Relying upon that decision,
the trial court reasoned herein as follows:
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3
Ms. Manno explained that the victim had been diagnosed with Asperger’s
and had “mental limitations that made her more vulnerable.” Id. at 33.
She also acknowledged that Appellant had a juvenile criminal history and a
prior, adult criminal history. Id. at 34.
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Mr. Paul Everett (Tr. pp. 15-27) gathered various reports,
including [] Appellant’s criminal complaint with affidavit of
probable cause in the current case and the same information
from Appellant’s 210 of 2015 case. He did not analyze the
documents but simply gathered the information that he could
find available and, in the course of his work for the Board,
passed these on to Ms. Manno to use in making her assessment.
She relied on the information provided to her and testified as to
the sources of her information on which her opinion was formed.
She testified that she made specific findings regarding all of the
criteria set forth in “Title 42, Section 9799.24” (Tr. pg. 31, lines
11-12). She explained that she has to evaluate all the factors
but that all the factors need not be met in order for someone to
be classified as an SVP. (Tr. pg. 31, lines 14-pg. 32, lines 1-
6)[.] This comports with the case law on SVP evaluations.
Prendas, Supra. at 358, 359. Her qualifications as stated on the
record (Tr. pg. 29, lines 3-24) enabled her to testify as an
expert. . . .
This court need not argue the issue of whether Ms. Manno
could change her opinion from an earlier assessment on [ ]
Appellant in which she found him not to be an SVP. As stated
above, she is required to base her opinion on information
provided to her including the current and most recent jury
verdict of guilty of a particular offense. Obviously she had
additional information in 2016, including the history of the
previous non-SVP offense which she reviewed prior to making [ ]
Appellant’s current evaluation. On cross-examination defense
counsel thoroughly interrogated her on this issue and she
provided him with an explanation as to how her testimony was in
accord with the permitted methods of evaluation. There is no
foundation for [ ] Appellant’s argument that, just because he
was found not to be an SVP in 2015 that he could be shielded
from being found to be an SVP in 2016, one year later.
Trial Court Opinion, filed 5/12/17, at 3-4 (unnumbered).
Our review of the record substantiates the trial court’s determination the
Commonwealth presented clear and convincing evidence that Appellant met
the statutory criteria to be classified as an SVP under SORNA. Appellant,
essentially asks this Court to reweigh the evidence and find in his favor,
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which we cannot do. See Commonwealth v. Meals, 590 Pa. 110, 912
A.2d 213 (2006) (holding this Court erred in reweighing the SVP evidence
presented to the trial court to give more weight to factors that were absent
than to those found and relied upon by the trial court).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/18/2017
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Com. v. Nazario, A.
Combined Opinion