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2023 PA Super 103

COMMONWEALTH OF PENNSYLVANIA

v.

JOHN R. AUMICK 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1529 EDA 2020

Appeal from the Judgment of Sentence Entered July 13, 2020

In the Court of Common Pleas of Pike County 

Criminal Division at No(s): CP-52-CR-0000184-2019

BEFORE: PANELLA, P.J., OLSON, J., DUBOW, J., KUNSELMAN, J., NICHOLS, 

J., MURRAY, J., McLAUGHLIN, J., McCAFFERY, J., and SULLIVAN, 

J.

OPINION BY SULLIVAN, J.: FILED JUNE 12, 2023

John R. Aumick (“Aumick”) appeals from the judgment of sentence 

imposed following the entry of his negotiated guilty plea to corruption of 

minors.

1

 Specifically, Aumick challenges the trial court’s determination that 

he is a sexually violent predator (“SVP”) subject to lifetime registration 

requirements pursuant to the Sex Offender Registration and Notification Act 

(“SORNA II”), 42 Pa.C.S.A. § 9799.10 et seq. We affirm. 

The relevant factual and procedural history of this matter is as follows. 

In November 2017, Ashley Whitten discovered that her stepfather, Aumick,

had repeatedly sexually abused her daughter, P.M. One month later, Molly 

Carson, a forensic interviewer for child abuse cases, conducted a videotaped 

____________________________________________

1 See 18 Pa.C.S.A. § 6301(a)(1)(ii). 
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forensic interview of P.M. at a child advocacy center. During the interview, 

P.M., then fourteen years old, stated that Aumick had raped her when she was 

six years old, causing her to experience soreness and resulting in blood on her 

underwear. P.M. also stated that, a few weeks later, Aumick began touching 

her vagina and then digitally penetrated her vagina with his finger. P.M. 

explained that she asked Aumick to stop, but he refused to do so. P.M. told 

the interviewer that Aumick did this to her on multiple occasions, but she 

stopped him before he penetrated her on subsequent occasions. P.M. further 

described several more instances of sexual abuse by her step-grandfather, 

including exposing his penis to her, making sexually inappropriate comments,

watching her when she went to the bathroom, and on multiple occasions,

grabbing and touching her buttocks. P.M. indicated that Aumick stopped 

touching her when she was eight or nine years old.

Police charged Aumick with seventeen sexual offenses, including, inter 

alia, rape of a child, statutory sexual assault, aggravated indecent assault, 

sexual assault, and corruption of minors. A preliminary hearing was 

conducted on March 19, 2019, at which the Commonwealth presented the 

testimony of Ms. Carson, who authenticated the video recording of the forensic 

interview of P.M. regarding her sexual abuse by Aumick. In addition to the 

video, the Commonwealth presented the testimony of Chief Detective Michael 

Jones, who explained that the sexual abuse occurred at two locations within 

Pike County. The detective stated that he interviewed Aumick and that, during 
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the interview, Aumick told him that he had sexual intercourse with his 

stepdaughter, Ms. Whitten, and that she performed oral sex on him.2 At the 

conclusion of the preliminary hearing, the magistrate court held all charges 

over for trial. 

On January 18, 2020, following written and oral plea colloquies, Aumick 

entered a negotiated guilty plea to corruption of minors, a felony of the third 

degree and a Tier I offense which required him to be evaluated by the Sexual 

Offender Assessment Board (“SOAB”) for classification as an SVP. See 42 

Pa.C.S.A. § 9799.24(a) (providing that “a court shall order an individual 

convicted of a sexually violent offense to be assessed by the board”); see 

also id. § 9799.14 (classifying corruption of minors as a Tier I sexual offense). 

In his written plea colloquy, Aumick agreed that “[b]etween June 2009 

through December 2015, [he] engaged in a course of corruption against his 

grandchild, P.M., ([born in 2003]), which included sexual touching of her 

private areas. This occurred at two residences in Pike County, Lehman 

Township, Pennsylvania.” Written Plea Colloquy, 1/8/20, at 4; see also N.T., 

1/8/20, at 4-5 (wherein Aumick confirmed at the plea hearing that the factual 

____________________________________________

2 Ms. Whitten confirmed that she performed oral sex on Aumick in April 2017, 

but also told investigators that Aumick had sexually assaulted her when she 

was growing up.
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basis for his guilty plea was accurately set forth in the written plea colloquy).3 

Pursuant to the negotiated plea agreement, the Commonwealth dismissed the 

remaining sixteen charges against Aumick. The trial court then ordered a 

presentence investigation report and scheduled the matter for a sentencing 

hearing. The court also ordered a SOAB assessment in accordance with 

section 9799.24(a).

Prior to the hearing, a SOAB investigator conducted an investigation 

regarding Aumick and prepared a report. Based on the SOAB investigator’s 

report and case-related documents, Mary Muscari, Ph.D., a SOAB member, 

conducted an assessment of Aumick. Dr. Muscari determined that Aumick 

should be classified as an SVP and prepared a report regarding her conclusion. 

Based on Dr. Muscari’s assessment, the Commonwealth requested that the 

trial court conduct a hearing to determine whether Aumick should be classified 

as an SVP. See 42 Pa.C.S.A. § 9799.24(e)(1).

On July 13, 2020, the trial court conducted a hearing to determine 

whether Aumick should be classified as an SVP and to impose sentence. At 

____________________________________________

3

Inexplicably, Aumick insists throughout his appellate brief that he only 

admitted to touching P.M.’s buttocks. See Aumick’s Brief at 9, 11, 13, 16, 

and 20. However, this is simply not true. Aumick was accused of sexually 

touching both P.M.’s vagina and buttocks on multiple occasions, and he 

admitted in his written plea colloquy to “sexual touching of her private 

areas” at two different residences. Written Plea Colloquy, 1/8/20, at 4 

(emphasis added). We consider the “private areas” of a female to include 

both the vagina and buttocks. Thus, we reject Aumick’s attempts to minimize 

the conduct to which he admitted in connection with his guilty plea. 
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the hearing, the Commonwealth presented the expert testimony and report of 

Dr. Muscari, who was qualified by the trial court as an expert in the field of 

sexual offender assessment without objection. See N.T., 7/13/20. at 6. Dr. 

Muscari testified that she did not conduct an in-person interview with Aumick; 

however, she explained that a majority of SVP assessments are completed 

without an interview. Id. at 8. Dr. Muscari noted that she has completed

between 600 and 700 SVP assessments for SOAB over the past fifteen years. 

Id. at 5. She further explained that, in conducting such assessments, she 

reviews the materials provided through the courts, including police reports, 

child protective reports, and testimony. Id. at 7. Dr. Muscari indicated that, 

in assessing Aumick, she reviewed, inter alia, the affidavit of probable cause, 

criminal information, criminal complaint, preliminary hearing transcript, and 

investigative reports prepared by Child Protective Services. Id. at 9; see also

Exhibit 1, 2/28/20, at 1. Dr. Muscari explained that she assessed Aumick 

based on the statutory factors and concluded to a reasonable degree of 

professional certainty that Aumick should be classified as an SVP. Id. at 9, 

18. Dr. Muscari referenced Aumick’s antisocial behavior, as reflected in his 

prior criminal history, which includes convictions for homicide by vehicle and 

burglary. Id. at 11. Dr. Muscari discussed her opinion that Aumick suffers 

from a pedophilic disorder. Id. at 12-15. Dr. Muscari further opined that 

Aumick’s sexual offense was the result of a mental defect or personality 

disorder which made him more likely to reoffend. Id. at 15-17. Dr. Muscari 
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additionally noted the particular vulnerability of the victim, her relationship to 

Aumick, and the repeated nature of the sexual abuse. Id. Dr. Muscari 

explained that, even though Aumick has experienced incarceration, Aumick’s 

“condition overrode his emotional, volitional control so he could not control 

his impulses to sexually abuse [P.M.]” despite her considerable protestations. 

Id. at 16. Dr. Muscari opined that “Aumick is following a sexually deviant 

pattern and he acted upon it by committing the index offense.” Id. Dr. 

Muscari’s assessment and report were entered into evidence without 

objection. Id. at 18.4 

____________________________________________

4 The learned dissent insists that Dr. Muscari’s assessment was based solely

on the allegations to which Aumick did not plead guilty. See Dissenting 

Opinion, at 6. However, this assertion is belied by the record. At the SVP 

hearing, Dr. Muscari answered in the affirmative when she was asked, “did 

you evaluate any factors with regard to the current offense for which [Aumick] 

has been convicted by his Plea?” N.T., 7/13/20, at 9; see also id. at 20, 21 

(wherein Dr. Muscari repeatedly agreed that Aumick pleaded guilty to 

corruption of minors based on his repeatedly touching P.M. in a sexually 

inappropriate manner). Moreover, in her opinion, Dr. Muscari indicated that 

she had reviewed the affidavit of probable cause which detailed, inter alia, 

P.M.’s accusations that Aumick “started touching her vagina with his 

fingers . . . [and] had done this multiple times to her . . ..” Exhibit 1, 2/28/20, 

at 2. Dr. Muscari further indicated in her expert report that, pursuant to the 

affidavit, P.M. stated that Aumick “would grab and touch her butt, [and that] 

this took place multiple times.” Id. In making her SVP assessment, Dr. 

Muscari specifically indicated that her opinion was based on “[h]er having 

reviewed all of the records available, having considered all of the factors 

specified under Pennsylvania law, and having considered the current and 

credible sex offender research . . ..” Id. at 9 (emphasis added). Thus, it is 

clear that Dr. Muscari’s assessment included her consideration of the 

accusations to which Aumick confessed (i.e., sexually touching P.M.’s private 

areas on multiple occasions). 
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Aumick’s counsel cross-examined Dr. Muscari regarding her 

assessment. In particular, defense counsel questioned Dr. Muscari regarding 

her consideration of all of P.M.’s allegations of sexual abuse rather than the

limited factual basis for Aumick’s plea of guilt for corruption of minors. Aumick 

presented no evidence at the hearing. At the conclusion of the SVP hearing, 

the trial court determined that the Commonwealth had met its burden of 

proving by clear and convincing evidence that Aumick should be classified as 

an SVP subject to lifetime reporting requirements under SORNA II. Id. at 31, 

34. 

The trial court then conducted a sentencing hearing at which P.M. 

testified regarding the trauma she has suffered due to Aumick’s sexual abuse, 

resulting in her suicide attempts. At the conclusion of the sentencing hearing, 

the trial court imposed a sentence of eighteen months to five years in prison

for corruption of minors. Aumick filed a post-sentence motion for 

reconsideration which the trial court denied. Aumick then filed a timely notice 

of appeal, and both he and the trial court complied with Pa.R.A.P. 1925.

Aumick raises the following issues for our review:

A. WHETHER THE TRIAL COURT ERRED AND ABUSED ITS 

DISCRETION BY FINDING THAT AUMICK WAS [AN SVP] BASED 

ON ALLEGED INCIDENTS TO WHICH HE DID NOT PLEAD 

GUILTY NOR OF WHICH HE WAS CONVICTED.

B. WHETHER THE TRIAL COURT ERRED AND ABUSED ITS

DISCRETION BY FINDING THAT AUMICK WAS [AN SVP] BASED 

ENTIRELY ON HEARSAY IN THE FORM OF THE STATEMENTS OF 

THE ALLEGED VICTIM WHO NEVER TESTIFIED AT ANY 

PROCEEDING.
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Aumick’s Brief at 7 (capitalization in original).5

In both of his issues, Aumick challenges his SVP designation. A

challenge to a trial court’s SVP designation presents a challenge to the

sufficiency of the evidence for which our standard of review is de novo and

our scope of review is plenary. See Commonwealth v. Meals, 912 A.2d

213, 218 (Pa. 2006).6 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. Id. The

reviewing court must examine all of the Commonwealth’s evidence without

consideration of its admissibility. See Commonwealth v. Baker, 24 A.3d

____________________________________________

5 Aumick’s issues, as presented in his statement of questions involved, purport

to raise claims of trial court error or abuse of discretion. However, in the

discussion section of his brief, Aumick does not explain how the trial court

erred or abused its discretion. Instead, Aumick focuses entirely on the basis

for Dr. Muscari’s opinion. Specifically, he challenges the information that Dr. 

Muscari was permitted to consider when conducting her assessment as to 

whether Aumick should be classified as an SVP. As explained above, the trial

court’s inquiry at an SVP hearing is different from the SOAB’s assessment. 

Thus, a claim of trial court error or abuse of discretion involves an entirely

different inquiry than a challenge to a SOAB assessment. Pursuant to our 

Rules of Appellate Procedure, “[n]o question will be considered unless it is 

stated in the statement of questions involved or is fairly suggested thereby”). 

Aumick did not raise any issue in the statement of questions involved 

specifically relating to Dr. Muscari’s assessment. While we could find waiver

of both of Aumick’s issues on this basis, we decline to do so.

6 Although the Meals Court addressed a prior version of the SVP statute, see

42 Pa.C.S.A. § 9795.4 (repealed), it remains instructive in our review of a trial 

court’s SVP determination under present law. See, e.g., Commonwealth v.

Woeber, 174 A.3d 1096, 1105-06 (Pa. Super. 2017) (relying on Meals for

the applicable scope and standard of review of an SVP designation).
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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, 863 A.2d 428, 431 (Pa. 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”). “We will

reverse a trial court’s determination of SVP status only if the Commonwealth

has not presented clear and convincing evidence that each element of the

statute has been satisfied.” Baker, 24 A.3d at 1033.

The procedure for determining SVP status is statutorily mandated and

well-defined. See Commonwealth v. Dixon, 907 A.2d 533, 535 (Pa. Super.

2006). Under revised Subchapter H of SORNA,

7 after a person has been

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7 SORNA has been amended several times. SORNA I was originally enacted 

on December 20, 2011, effective December 20, 2012, see Act of December 

20, 2011, P.L. 446, No. 111, § 12, effective in one year or December 20, 2012 

(Act 11 of 2011). Act 11 was amended on July 5, 2012, also effective 

December 20, 2012, see Act of July 5, 2012, P.L. 880, No. 91, effective 

December 20, 2012 (Act 91 of 2012), and amended on February 21, 2018, 

effective immediately, known as Act 10 of 2018, see Act of February 21, 2018, 

P.L. 27, No. 10, §§ 1-20, effective February 21, 2018 (“Act 10” of 2018), and, 

lastly, reenacted and amended on June 12, 2018, P.L. 140, No. 29, §§ 1-23, 

effective June 12, 2018 (“Act 29” of 2018). Through Act 10, as amended in 

Act 29 (collectively, SORNA II), the General Assembly split SORNA I’s former 

(Footnote Continued Next Page)
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convicted of an offense listed in section 9799.14, the trial court orders an

assessment by the SOAB. See 42 Pa.C.S.A. § 9799.24(a). The SOAB must

assess all individuals convicted of sexually violent offenses to determine

whether they should be classified as an SVP. See id. § 9799.24(b). When

assessing whether a particular offender should be classified as an SVP, “the

board shall establish standards for evaluations and for evaluators conducting

the assessments.” Id. 

A SOAB board member conducts the assessment to determine if the 

individual should be classified as an SVP. See id. To aid this function, “[a]ll

State, county and local agencies, offices and entities in this 

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Subchapter H into a revised Subchapter H and Subchapter I. Subchapter I

applies to sexual offenders who committed an offense on or after April 22, 

1996 but before December 20, 2012, whose period of registration has not 

expired, or whose registration requirements under a former sexual offender 

registration law have not expired. See 42 Pa.C.S.A. §§ 9799.51-9799.75. 

Revised Subchapter H applies to offenders who committed an offense on or 

after December 20, 2012 (the date SORNA I became effective). See 42 

Pa.C.S.A. §§ 9799.10-9799.42. Both revised Subchapter H and Subchapter I

require an individual who has been designated as an SVP to register for life. 

See 42 Pa.C.S.A. §§ 9799.15(d), 9799.55(b)(3). In the instant matter, P.M. 

indicated that Aumick sexually abused her from the time she was six years 

old until she was eight or nine years old. As P.M. was born in 2003, her 

allegations suggest that the sexual offenses in question were committed

between 2009 and 2012, thereby implicating Subchapter I. However, as 

explained above, Aumick pleaded guilty to sexual offenses committed 

“[b]etween June 2009 through December 2015 . . ..” Written Plea Colloquy, 

1/8/20, at 4. Thus, Aumick was convicted of offenses committed both before 

and after December 20, 2012, thus straddling the boundary between revised 

Subchapter H and Subchapter I. Nonetheless, the trial court classified Aumick 

as an SVP under revised Subchapter H, which contains more stringent 

reporting requirements than Subchapter I. As Aumick has not challenged that 

classification, we need not address it.
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Commonwealth . . . shall cooperate by providing copies of records and 

information as requested by the board in connection with the court-ordered 

assessment.” Id. § 9799.24(c). 

An assessment shall include, but not be limited to, an

examination of the following:

(1) Facts of the current offense, including:

(i) Whether the offense involved multiple victims.

(ii) Whether the individual exceeded the means necessary 

to achieve the offense.

(iii) The nature of the sexual contact with the victim.

(iv) Relationship of the individual to the victim.

(v) Age of the victim.

(vi) Whether the offense included a display of unusual 

cruelty by the individual during the commission of the 

crime.

(vii) The mental capacity of the victim.

(2) Prior offense history, including:

(i) The individual's prior criminal record.

(ii) Whether the individual completed any prior sentences.

(iii) Whether the individual participated in available 

programs for sexual offenders.

(3) Characteristics of the individual, including:

(i) Age of the individual.

(ii) Use of illegal drugs by the individual.
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(iii) A mental illness, mental disability or mental 

abnormality.

(iv) Behavioral characteristics that contribute to the 

individual's conduct.

(4) Factors that are supported in a sexual offender assessment 

field as criteria reasonably related to the risk of reoffense.

Id. § 9799.24(b)(1)-(4). After completing its assessment, the SOAB member 

must prepare and submit a written report to the district attorney, who may 

file a praecipe for a hearing on the matter. See id. § 9799.24(d), (e)(1). 

A SOAB expert opinion falls within the general rules regarding expert 

witnesses. See Commonwealth v. Prendes, 97 A.3d 337, 360 (Pa. Super

2014), overruled sub silentio on other grounds by Commonwealth v.

Hvizda, 116 A.3d 1103, 1106 (Pa. 2015). In this regard, Pa.R.E. 702

provides:

A witness who is qualified as an expert by knowledge, skill, 

experience, training, or education may testify in the form of an 

opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized

knowledge is beyond that possessed by the average

layperson;

(b) the expert’s scientific, technical, or other specialized

knowledge will help the trier of fact to understand the

evidence or to determine a fact in issue; and

(c) the expert’s methodology is generally accepted in the

relevant field.

Pa.R.E. 702.
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Rule 703 identifies the facts and data upon which an expert may base 

his or her opinion:

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.

Further, “[i]f the expert states an opinion the expert must state the facts

or data on which the opinion is based.” Pa.R.E. 705; see also id. Cmt.

(explaining that otherwise inadmissible facts and data supporting an expert

opinion are considered only to explain basis for expert’s opinion, not as

substantive evidence). 

The trial court’s inquiry at an SVP hearing is different from the SOAB’s

assessment. Whereas the SOAB member must consider the fifteen factors

listed in section 9799.24(b), the trial court must determine whether the

Commonwealth has proven by clear and convincing evidence that the

defendant is an individual who has “a mental abnormality or personality 

disorder that makes the individual likely to engage in predatory sexually 

violent offenses.” 42 Pa.C.S.A. § 9799.12 (providing the definition of a

“sexually violent predator”); see also Commonwealth v. Butler, 226 A.3d

972, 992 (Pa. 2020) (stating, an SVP, in addition to having been convicted of

a sexually violent offense, is a person “who [has] been individually determined
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to suffer from a mental abnormality or personality disorder such that they are

highly likely to continue to commit sexually violent offenses”).

“An SVP assessment is not a trial or a separate criminal proceeding that 

subjects the defendant to additional punishment.” Prendes, 97 A.3d at 358

(citing Commonwealth v. Howe, 842 A.2d 436, 445-46 (Pa. Super. 2004)). 

“SVP status, therefore, does not require proof beyond a reasonable doubt; 

[rather,] the court decides SVP status upon a show of clear and convincing 

evidence that the offender is, in fact, an SVP.” Id. (citing Commonwealth

v. Killinger, 888 A.2d 592, 600 (Pa. 2005)).

In both of his issues, Aumick challenges Dr. Muscari’s opinion to the 

extent that she was permitted to consider allegations made by P.M. to which 

he did not plead guilty when assessing whether he met the criteria to be 

classified as an SVP. As these issues are interrelated, we will address them

together. 

In his first issue, Aumick argues that his guilty plea was limited to the 

offense of corruption of minors and further limited by his admission to sexual 

touching of P.M.’s private areas.

8

 Aumick takes issue with the fact that Dr. 

____________________________________________

8 As explained previously, Aumick attempts to minimize the extent of the 

conduct to which he admitted in connection with his guilty plea by repeatedly 

insisting that he merely admitted to sexually touching P.M.’s buttocks. See

Aumick’s Brief at 9, 11, 13, 16, and 20. Our review of the record, however,

reveals otherwise. Aumick agreed at his plea hearing that “[b]etween June 

2009 through December 2015, [he] engaged in a course of corruption against 

his grandchild, P.M. . . . which included sexual touching of her private 

(Footnote Continued Next Page)
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Muscari based her assessment on the allegations contained in the police 

report, including P.M.’s claims that Aumick penetrated her vagina with his 

penis, digitally penetrated her vagina, touched her vagina on several 

occasions, exposed his penis to her, watched her when she went to the 

bathroom, grabbed and touched her buttocks on multiple occasions, and made 

sexual comments to her. Aumick contends that, because he did not confess 

or plead guilty to any conduct other than touching P.M.’s private area, Dr. 

Muscari’s conclusion that Aumick suffers from pedophilic disorder is based on 

unproven and unadmitted accusations. Aumick points out that his criminal 

record contains no other arrests or convictions for sexual offenses. Aumick 

asserts that “it in [sic] entirely inappropriate for an individual to be held liable 

in a court of law during a sentencing proceeding based on a series of facts to 

which he did not plead.” Aumick’s Brief at 16. Although Aumick concedes 

that he was aware of and accepted that SORNA registration was a 

consequence of his plea, he nevertheless contends that SORNA registration 

must be based on the offenses committed, not the victim’s allegations.

____________________________________________

areas.” See Written Plea Colloquy, 1/8/20, at 4 (emphasis added). Notably,

P.M. accused Aumick of touching her vagina on multiple occasions and 

grabbing and touching her buttocks on multiple occasions. See Exhibit 1, 

2/28/20, at 2. Thus, contrary to Aumick’s assertions otherwise, his plea was 

not limited to merely sexually touching P.M.’s buttocks on multiple occasions

and can be considered to also include his sexual touching of P.M.’s vagina on 

multiple occasions. 
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In his second issue, Aumick challenges Dr. Muscari’s opinion to the 

extent that she did not examine P.M., and instead relied on information 

provided by the Commonwealth. Aumick argues that “Dr. Muscari based her 

opinion entirely on material outside of the facts of the case by reviewing 

unproven and untested accusations to which no admission had been made.” 

Aumick’s Brief at 18. Aumick claims that because P.M. never testified in this 

case, her accusations against him were never tried or tested in any 

appropriate forum and constitute hearsay.

9 Aumick argues that Ms. Whitten

had cause to be biased against him and has strong influence and control over 

P.M. Aumick contends that Dr. Muscari based her opinion on allegations of 

actual sexual conduct over a period of years which he denied. According to 

____________________________________________

9 Hearsay is defined as a statement that:

(1) the declarant does not make while testifying at the current 

trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter 

asserted in the statement.

Pa.R.E. 801(c). Although Aumick did not specifically use the word “hearsay” 

in his post-sentence motion, he did challenge Dr. Muscari’s reliance on 

“allegations of sexual contact beyond what [Aumick] confessed to and what 

he was sentenced for, and that “[t]he opinion of the SOAB expert was 

therefore based entirely on untried allegations to which [Aumick] never 

admitted.” Motion to Reconsider Sentence, 7/21/20, at 1-2. Thus, as all of 

the documentation relied on by Dr. Muscari included hearsay statements, we 

deem his hearsay objection to be preserved. 
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Aumick, Dr. Muscari’s opinion and conclusions were based on unknowable and 

unprovable materials.10

Initially, we observe that the offense of corruption of minors to which

Aumick pleaded guilty is, without more, sufficient to trigger an SVP

assessment and provide a basis to support an SVP classification where the

Commonwealth’s evidence, including the SOAB assessment, demonstrates

that the person convicted of a sexually violent offense has a mental

abnormality or disorder rendering that person more likely to engage in

predatory sexually violent offenses. See Commonwealth v. Feucht, 955 

A.2d 377, 381 (Pa. Super. 2008); see also 42 Pa.C.S.A. § 9799.24(a) 

(providing that “a court shall order an individual convicted of a sexually violent 

____________________________________________

10 In the argument section of his brief, Aumick attempts to raise additional 

issues for our review; namely, that Dr. Muscari’s consideration of P.M.’s 

unproven allegations constitutes a breach of his plea agreement as well as a 

violation of the confrontation clause. However, these claims were not raised 

in Aumick’s statement of questions presented. See Pa.R.A.P. 2116 (providing 

that “[n]o question will be considered unless it is stated in the statement of 

questions presented or is fairly suggested thereby”). Moreover, Aumick did 

not raise these issues in either his post-sentence motion or in his Rule 1925(b) 

concise statement. See Pa.R.A.P. 302(a) (providing that “[i]ssues not raised 

in the lower court are waived and cannot be raised for the first time on 

appeal”); see also Pa.R.A.P. 1925(b)(4)(vii) (providing that issues not raised 

in the concise statement are waived). Although Aumick raised a hearsay 

violation, the concepts of hearsay and confrontation clause violations are 

distinguishable. See Commonwealth v. Chmiel, 738 A.2d 406, 420 (Pa.

1999). Therefore, as Aumick failed to preserve these additional issues for our 

review, we decline to address them. 
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offense to be assessed by the board”); id. § 9799.14 (classifying corruption 

of minors as a Tier I sexual offense).

Moreover, to the extent that Dr. Muscari considered P.M.’s other

accusations and information contained in documents provided by the

Commonwealth11 in making her assessment, this Court has previously

determined that she was permitted to do so. In Prendes, we addressed a

similar challenge where the appellant argued that the record did not support

his SVP classification because the trial court’s SVP determination was based

on a SOAB member’s expert testimony that was founded on hearsay and

unproven allegations contained in police reports, the affidavit of probable 

cause, polygraph examination reports, and other documents of record. The

Prendes Court ruled that, in making her SVP assessment, the SOAB member

was permitted to consider those documents because she testified that such 

records are typically relied on in SOAB evaluations. See Prendes, 97 A.3d at 

362; see also Pa.R.E. 703, 705. The Prendes Court explained:

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 records and information as requested by the 

SOAB in connection with an SVP assessment, without limitation 

____________________________________________

11 In her expert report, Dr. Muscari indicated that she reviewed the following 

documents: the SOAB investigator’s report; the trial court order for an SVP 

assessment; the criminal information; the criminal complaint; the affidavit of 

probable cause; the District Attorney’s CID; the preliminary hearing 

transcript; the bail report; and the Child Protective Services reports. See

Exhibit 1, 2/28/20, at 1.
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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 

an 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 . . . 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 the basis for an

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 crossexamination. . . . Opposing counsel bears the burden of exposing

and exploring any weaknesses in the underpinnings of the expert’s

opinion.

Id. at 360-61 (some citations omitted, emphasis added).12

Based on the reasoning expressed in Prendes, we conclude that Dr.

Muscari was permitted to consider the affidavit of probable cause, criminal 

information, criminal complaint, preliminary hearing transcript, and the 

investigative reports prepared by Child Protective Services when assessing

Aumick. See Prendes, 97 A.3d at 360-61; see also 42 Pa.C.S.A. 

§ 9799.24(c); Pa.R.E. 702, 703, 705. Pursuant to revised Subchapter H, the

SOAB must undertake a comprehensive assessment of a defendant convicted

____________________________________________

12 Aumick concedes that, pursuant to Prendes, “an expert’s decision can be 

based on otherwise inadmissible materials in a SORNA assessment.” Aumick’s 

Brief at 18. 
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of a sexually violent offense by considering the fifteen factors set forth in

section 9799.24(b)(1)-(4). See id. § 9799.24(b)(1)-(4). Section 9799.24(c) 

expressly requires that “[a]ll 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 board in connection with the court-ordered 

assessment . . ..” 42 Pa.C.S.A. § 9799.24(c) (emphasis added). Moreover,

within ninety days of a defendant’s qualifying conviction, the SOAB must

prepare a written report regarding its assessment which includes, at a

minimum, the following information: (1) a concise narrative of the individual’s

conduct; (2) whether the victim was a minor; (3) the manner of weapon or

physical force used or threatened; (4) if the offense involved unauthorized

entry into a room or vehicle occupied by the victim; (5) if the offense was part

of a course or pattern of conduct involving multiple incidents or victims; and

(6) previous instances in which the individual was determined guilty of an

offense subject to this subchapter or of a crime of violence as defined in

section 9714(g) (relating to sentences for second and subsequent offenses). 

Id. § 9799.24(d), (d.1). 

Given these statutory mandates, it is clear that the legislature intended

that the SOAB member consider more than the limited facts included in a plea

colloquy, and that the SOAB member undertake to review and consider the

information contained in records provided by state, county and local agencies, 
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offices and entities in this Commonwealth when making an SVP assessment

and preparing a statutorily compliant written report. To be sure, it would be

the rare occasion on which the SOAB member would be able to fulfill its

statutory obligations if its SVP assessments and written reports were limited

to facts contained in a plea colloquy, admitted into evidence, or determined

by the trier of fact.13

Moreover, in the context of an SVP hearing, the judge is not tasked with 

evaluating the veracity of the facts underlying the expert’s testimony. See 

Prendes, 97 A.3d 360 (explaining that an SVP hearing is not a trial and the 

primary purpose of the SVP registration requirements is to protect the public, 

not to punish the offender). Indeed, the facts presented at an SVP hearing 

are not being offered for the truth of the matter asserted, as would be the 

case in a true hearsay scenario. Instead, they constitute information, gleaned 

from records which are reasonably relied on in SOAB evaluations, that is 

presented to the trial court solely to supply the basis for the expert’s opinion

in accordance with our Rules of Evidence. See Prendes, 97 A.3d at 362; see 

____________________________________________

13 Despite established jurisprudence on this point, the learned dissent 

conflates an SVP hearing with a preliminary hearing with respect to the 

consideration of hearsay evidence. See Dissenting Opinion, at 9 n.2 (relying 

on Commonwealth v. McClelland, 233 A.3d 717, 736 (Pa. 2020) (holding 

that a defendant’s due process rights are violated at a preliminary hearing

when charges are held over based solely on hearsay)). As explained above, 

an SVP assessment is not a trial or a separate criminal proceeding that 

subjects the defendant to additional punishment. Prendes, 97 A.3d at 358;

see also Killinger, 888 A.2d at 600.
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also Pa.R.E. 703, 705. Accordingly, the otherwise inadmissible facts 

reasonably relied upon by Dr. Muscari to explain the basis of her opinion, 

including the allegations of sexual abuse asserted by P.M., do not constitute 

substantive evidence. See Prendes, 97 A.3d at 361; see also Pa.R.E. 703, 

705 and Cmt. 

On the other hand, an expert’s opinion which is rendered to a reasonable

degree of professional certainty is, itself, substantive evidence. See 

Commonwealth v. Fuentes, 991 A.2d 935, 944-45 (Pa. Super. 2010) (en

banc) (concluding that, because the expert’s report and testimony supported

the trial court’s finding that appellant was an SVP, there was no basis for 

granting sufficiency relief). Thus, in this case, Dr. Muscari’s opinion that

Aumick is an SVP, which was rendered to a reasonable degree of professional

certainty based on the materials she had reviewed, constituted sufficient

evidence for the trial court to make its SVP determination.

14

 

Aumick had the opportunity to defend himself against Dr. Muscari’s 

opinion by presenting his own defense expert at the SVP hearing and by crossexamining Dr. Muscari to test the reliability and credibility of her opinion. 

____________________________________________

14 To the extent that Aumick attempts to challenge the admissibility of Dr. 

Muscari’s expert report, that challenge is waived, as he did not object to the 

admission of her expert report during the SVP hearing. See Commonwealth 

v. Baker, 24 A.3d 1006, 1034 (Pa. Super. 2011) (holding that “[h]aving failed 

to raise an objection before the trial court, Baker cannot now complain that 

the trial court erred in admitting the [SOAB member’s expert report at the 

SVP hearing] . . ..”).
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Aumick did not retain a defense expert or present any evidence at the SVP

hearing. Although defense counsel subjected Dr. Muscari to questioning 

regarding the materials she relied upon in making her assessment, such

efforts went to the weight rather than the sufficiency of the Commonwealth’s

case. See Feucht, 955 A.2d at 382.

15

 Accordingly, they do not affect our

sufficiency analysis.

Viewing the record evidence in the light most favorable to the 

Commonwealth, we conclude that the record substantiates the trial court’s 

determination that the Commonwealth presented clear and convincing 

evidence that Aumick met the statutory criteria to be classified as an SVP 

under revised Subchapter H of SORNA II. Dr. Muscari testified to a reasonable 

degree of professional certainty that Aumick suffers from a pedophilic 

disorder, is following a sexually deviant pattern, and is an individual who has

a mental abnormality or personality disorder that makes him likely to engage 

in predatory sexually violent offenses. See N.T., 7/13/20, at 9, 12-18. 

Aumick essentially asks this Court to reweigh the evidence and find in his 

favor, which we cannot do. See Fuentes, 991 A.2d at 944-45 (holding that 

____________________________________________

15 Aumick failed to raise a challenge to the weight of the evidence in the lower 

court. Thus, he failed to preserve a weight challenge for our review. See 

Pa.R.Crim.P. 607 (providing that a challenge to the weight of the evidence

must be preserved in a post-sentence motion, prior to sentencing orally, or 

through a written motion); see also Pa.R.A.P. 302(a) (providing that issues 

not raised in the lower court are waived and cannot be raised for the first time 

on appeal).
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appellant’s challenge to the information considered by the SOAB expert in 

making the SVP assessment went to the weight rather than the sufficiency of 

the evidence). Accordingly, we afford him no relief.

Judgment of sentence affirmed.

President Judge Panella, Judges Olson, Kunselman, Nichols, Murray,

McLaughlin and McCaffery join this opinion.

Judge Dubow files a dissenting opinion.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/12/2023