J-S13034-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellant 

v. 

J.D.M. 

 Appellee No. 1461 WDA 2014 

Appeal from the Order Entered August 29, 2014 

In the Court of Common Pleas of Mercer County 

Criminal Division at No: CP-43-CR-0001594-2013 

BEFORE: BENDER, P.J.E., MUNDY, and STABILE, JJ. 

MEMORANDUM BY STABILE, J.: FILED JULY 14, 2015 

 The Commonwealth appeals from the order of the Court of Common 

Pleas of Mercer County declining to designate Appellee J.D.M. as a sexually 

violent predator (SVP). For the reasons stated below, we vacate the order, 

and remand for proceedings consistent with this memorandum. 

The trial court summarized the relevant factual and procedural history 

as follows: 

[Appellee] was arrested on October 25, 2013, and charged 

with three (3) counts each of statutory sexual assault, 

involuntary deviate sexual intercourse, sexual assault, and 

aggravated indecent assault. The charges arose out of 

alleged sexual contact that [Appellee] had over several 

years with his cousin. The first alleged contact occurred 

when the victim was 12 and [Appellee] was 17, and ending 

when the victim was 15 and [Appellee] was 21. 

A preliminary hearing was held on November 1, 2013. 

[Appellee] was ordered held for trial on all charges. 
J-S13034-15 

- 2 - 

[Appellee] pled guilty on March 4, 2014, to one count of 

aggravated indecent assault under [18 Pa.C.S.A. 

§ 3125(a)(8)1]. In the colloquy, [Appellee] admitted [to] 

vaginal intercourse on several occasions with someone 

under the age of 16 when he was 21 years of age. 

A [Pennsylvania’s Sex Offender Registration and 

Notification Act (SORNA)2] [h]earing was held on August 

29, 2014. The sole witness to testify was Brenda Manno[, 

a member of the Pennsylvania Sexual Offender 

Assessment Board]. Her testimony can be summarized as 

follows: 

The evaluation was conducted on May 14, 2014. 

[Appellee] has no prior criminal history. The victim was a 

cousin and the first sexual encounter occurred when she 

was 12 and it involved sexual intercourse. The abuse 

involved digital penetration with markers and pens and 

caused bleeding. 

____________________________________________ 

1

 Section 3125(a)(8) provides: 

Except as provided in sections 3121 (relating to rape), 3122.1 

(relating to statutory sexual assault), 3123 (relating to 

involuntary deviate sexual intercourse) and 3124.1 (relating to 

sexual assault), a person who engages in penetration, however 

slight, of the genitals or anus of a complainant with a part of the 

person’s body for any purpose other than good faith medical, 

hygienic or law enforcement procedures commits aggravated 

indecent assault if: 

. . . 

(8) the complainant is less than 16 years of age and the 

person is four or more years older than the complainant and 

the complainant and the person are not married to each 

other. 

18 Pa.C.S.A. § 3125(a)(8). 

2

 42 Pa.C.S.A. §§ 9799.10-.41. 
J-S13034-15 

- 3 - 

An objection to the use of markers and pens was made on 

the basis of hearsay. The objection was overruled on the 

grounds it was admissible for purposes of rendering an 

opinion. 

Ms. Manno assessed the statutory factors as follows: 

A. The incident did not involve multiple victims; 

B. The force did not exceed the means necessary to 

achieve the offense; 

C. The sexual contact was significant in that it included, 

inter alia, penetration with objects; 

D. The victim was not a stranger; 

E. The victim was 12 when it started and ended when 

she was 15; 

F. There was no unusual cruelty; 

G. There was a substantial age difference; 

H. There was no history of drug abuse; and 

I. There was no history of mental illness. 

Based on these factors, Ms. Manno felt that [Appellee] met 

the criteria for unspecified paraphilia disorder. [Appellee] 

further lacked the power to control his conduct. There 

w[ere] also predatory issues in this case because he used 

his family relationship to have access to the victim. 

Hence, Ms. Manno found [Appellee] met the criteria to be a 

sexually violent predator. 

This [c]ourt found [Appellee] not to be a sexually violent 

predator. This decision was based, in large part, on the 

Commonwealth’s failure to call the victim to corroborate 

the testimony regarding the use of items to penetrate the 

victim and the resultant bleeding. Without such testimony 

that evidence is hearsay and not admissible. It was clear 

to this [c]ourt that testimony was essential to Ms. Manno’s 

opinion. 

[Appellee] was sentenced immediately following the 

SORNA [h]earing. He received a term of imprisonment of 

not less than four (4) years nor more than ten (10) years. 

This appeal followed. 

Trial Court Opinion, 10/22/14, at 1-3. 
J-S13034-15 

- 4 - 

On appeal, the Commonwealth raises the following issues for our 

review: 

1. Did the [t]rial [c]ourt err in determining that the Sexual 

Offenders Assessment Board expert was not permitted to 

testify based upon hearsay from the victim, and in finding 

that permitting the same would be violative of [Appellee]’s 

Sixth Amendment Confrontation Clause rights? 

2. Did the [t]rial [c]ourt err in determining that Appellee is not a 

sexually violent predator because the Commonwealth did not 

call the victim to testify? 

Commonwealth’s Brief at 4. 

With respect to the first issue raised by the Commonwealth, as stated, 

the trial court found Appellee not to be an SVP principally because it believed 

the Commonwealth’s expert opinion was fatally flawed, since its expert 

relied upon statements made by the victim to police. Trial Court Opinion, 

10/22/14, at 3. The trial court viewed the victim’s statements as to the 

Appellee’s use of items to penetrate her as essential to the expert’s SVP 

opinion. Id. In the absence of the victim testifying at the SVP hearing, the 

trial court believed the expert’s testimony to be based upon, and 

undermined by, inadmissible hearsay testimony. Id. at 6. This assertion of 

error challenges the trial court’s ruling on admissibility of evidence, which we 

review as follows: 

The standard of review governing evidentiary issues is settled. 

The decision to admit or exclude evidence is committed to the 

trial court’s sound discretion, and evidentiary rulings will only be 

reversed upon a showing that a court abused that discretion. A 

finding of abuse of discretion may not be made merely because 
J-S13034-15 

- 5 - 

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. Matters within the trial court’s discretion are 

reviewed on appeal under a deferential standard, and any such 

rulings or determinations will not be disturbed short of a finding 

that the trial court committed a clear abuse of discretion or an 

error of law controlling the outcome of the case. 

Commonwealth v. Koch, 106 A.3d 705, 710-11 (Pa. 2014) (quotation 

marks and citations omitted). With this standard in mind we turn now to the 

specifics of the trial court’s evidentiary ruling regarding the Commonwealth’s 

expert’s use of the victim’s statements to police. 

In Commonwealth v. Prendes, 97 A.3d 337 (Pa. Super. 2014), 

appeal denied, 105 A.3d 736 (Pa. 2014), this Court held that a SOAB expert 

opinion falls within the general rules regarding expert witnesses. Id. at 360. 

As such, a SOAB expert opinion, under Pa.R.E. 703 and 705, may be based 

upon facts or data 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 their opinion on the subject. The facts and 

data need not be admissible for the expert’s opinion to be admitted. 

Id. at 361. While inadmissible facts or data relied upon by an expert are 

considered to explain the basis for an expert’s opinion and do not constitute 

substantive evidence, id. (citing Pa.R.E. 705 and Comment), “an expert’s 

opinion, which is rendered to a reasonable degree of professional certainty, 

is itself evidence.” Commonwealth v. Fuentes, 991 A.2d 935, 944-45 

(Pa. Super. 2010) (en banc), appeal denied, 12 A.3d 370 (2010) (emphasis 
J-S13034-15 

- 6 - 

added). As such, the expert’s opinion may be sufficient to support an SVP 

determination by the court. Id. at 944-45; see also Commonwealth v. 

Charlton, 902 A.2d 554, 564-65 (Pa. Super. 2006) (expert testimony that 

defendant met criteria for classification as SVP clearly and convincingly 

supports trial court determination of SVP). Clearly then, the trial court here 

erred in dismissing the expert opinion of the Commonwealth’s witness 

largely because the expert’s opinion was predicated upon hearsay 

statements by the victim to police. 

We also find error in the trial court’s rationale that there was no 

evidence the victim’s statements to police are the kind of information upon 

which experts would reasonably rely. Trial Court Opinion, 10/22/14, at 7. 

An SVP assessment is statutorily defined. Prendes, 97 A.3d at 360. By 

statute, members of the SOAB can, and routinely do, rely on reports that 

contain data that would not be admissible at trial. 

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). . . . 

42 Pa.C.S.A. § 9799.24(c). Information such as arrest warrants, affidavits 

of probable cause, police reports, charge sheets, victim’s statements, 

polygraph examinations, and written letters are types of information that sex 
J-S13034-15 

- 7 - 

offender assessment experts routinely rely upon, and their opinions are 

routinely admitted at SVP hearings. Prendes, 97 A.3d at 359-60. 

 This is not to say that an assessment expert’s opinion and the facts 

relied upon cannot be challenged. Once a SOAB expert testifies to the facts 

and data upon which his or her opinion is based, 

[t]hen, 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.” See In re D.Y. [34 A.3d 177, 183 (Pa. Super. 

2011), appeal denied, 47 A.3d 848 (Pa. 2012)]. Opposing 

counsel bears the burden of exposing and exploring “any 

weaknesses in the underpinnings of the expert’s opinion.” See 

id. 

Id. at 360-61. 

Thus, contrary to the trial court’s belief, expert opinions may be based 

on information contained in reports despite issues regarding admissibility at 

trial. The reliability of the information contained in these documents, 

however, can be tested at the SVP hearing by defense counsel, but such 

challenges involve the weight of the opinion, not its admissibility. Fuentes, 

991 A.2d 944-45 (citing Commonwealth v. Feucht, 955 A.2d 377, 382 

(Pa. Super. 2008)). Here, Appellee’s cross-examination consisted of merely 

asking the expert whether the details of the vaginal penetration, as she 

relayed them at the SVP hearing, were described in Appellee’s guilty plea. 

The expert replied the transcript of the guilty hearing was not available at 

the time of the assessment. Appellee did not ask any further questions. It 

would seem, therefore, that Appellee thought he could undermine the 
J-S13034-15 

- 8 - 

expert’s testimony by merely pointing out she did not read the transcript of 

the guilty plea hearing. While this may have been helpful, it was not 

necessary. In Prendes, this Court quoted with approval the following 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.[3] 

Prendes, 97 A.3d at 362. The trial court, here, therefore, erred to the 

extent it held the expert impermissibly relied on the victim’s statements to 

the police. 

With respect to the Commonwealth’s second issue, the trial court, in 

an apparent attempt to buttress its conclusion that the Commonwealth’s 

expert’s opinion was fatally flawed due to a failure of the victim to testify at 

the SVP proceedings, stated that the Sixth Amendment to the United States 

Constitution, as explained in Crawford v. Washington, 541 U.S. 36 

(2004), entitled Appellee to confront the victim in the SVP hearing. Citing 

Commonwealth v. Curnutte, 871 A.2d 839 (Pa. Super. 2005), the trial 

court held this was so because the same constitutional safeguards that apply 

____________________________________________ 

3

 It is worth noting that Appellee here did not present an expert witness to 

challenge the Commonwealth expert’s conclusions, or challenge the expert’s 

diagnosis except for a brief exchange meant to point out the information 

relied upon by the expert was not contained in the transcript of the guilty 

plea. 
J-S13034-15 

- 9 - 

at trial apply at SORNA hearings. Trial Court Opinion, 10/22/14, at 7. We 

disagree. 

The Confrontation Clause in the Sixth Amendment to the United States 

Constitution, by its own terms, applies only to defendants in criminal trials.4 

See, e.g., Commonwealth v. Wantz, 84 A.3d 324, 337 (Pa. Super. 2014); 

see also Barber v. Page, 390 U.S. 719, 725 (1968) (“[R]ight to 

confrontation is basically a trial right. It includes both the opportunity to 

cross-examine and the occasion for the jury to weigh the demeanor of the 

witness.”) It is also established that an SVP hearing is not a criminal trial; it 

is not even a criminal proceeding. Commonwealth v. Howe, 842 A.2d 

436, 445-46 (Pa. Super. 2004); Commonwealth v. Haughwout, 837 A.2d 

480, 488 (Pa. Super. 2003); see also Commonwealth v. Masker, 34 A.3d 

841, 846-47 (Pa. Super. 2011) (Bowes, J., concurring and dissenting). 

Nowhere did the trial court explain how it concluded the protection afforded 

under the Confrontation Clause applies to SVP proceedings.5 

To the extent the trial court relied on Curnutte for its conclusion the 

Sixth Amendment right to confrontation applies in an SVP proceeding, 

____________________________________________ 

4

 The Confrontation Clause, in relevant part, provides that “in all criminal 

prosecutions, the accused shall enjoy the right . . . to be confronted with the 

witnesses against him.” U.S. Const. amend. VI. 

5

 The mere fact the Sixth Amendment does not appear to be applicable to 

SVP proceedings does not mean that Appellee is not entitled to due process. 

This issue, however, was not raised, let alone addressed, by any party 

below. 
J-S13034-15 

- 10 - 

Curnutte is inapposite. The issue in Curnutte was whether a defendant is 

entitled to assistance of a court-appointed psychological expert at an SVP 

proceeding when he is unable to procure one on his own. Curnutte, 871 

A.3d at 841. This Court held that a defendant has such a right because our 

legislature, under SORNA, expressly granted a defendant the right to 

counsel and to call an expert witness at an SVP proceeding. We reasoned 

that this statutory right to counsel would be rendered meaningless if an 

indigent defendant is not provided the tools necessary to counter the 

Commonwealth’s evidence. Id. at 844. This is especially so where the 

central issues in an SVP proceeding are determined by expert testimony. Id. 

at 843. This right to an expert, when a proper showing is made for its 

necessity, arises solely by way of a statutory right and not by way of the 

United States Constitution. 

Curnutte also is inapposite for another reason. In Curnutte, as 

noted above, we held that an indigent defendant subject to an SVP hearing 

under the provisions of Megan’s Law II has a procedural due process right to 

a court-appointed psychological expert. Curnutte, therefore, is a due 

process—not a confrontation right—case. The two concepts may overlap, 

but they are not the same. See Crawford, 541 U.S. at 61; see also

California v. Green, 399 U.S. 149, 172-89 (1970) (Harlan, J., concurring). 

Additionally, while this Court did mention in Curnutte, in passing, that the 

same safeguards available to defendants at trial are also available to 
J-S13034-15 

- 11 - 

defendants in SVP hearings, that phrase is an obiter dictum, not the holding 

of the case. As such, Curnutte is not dispositive of the issue raised here. 

Finally, the trial court erred in equating the Confrontation Clause with 

hearsay. Again, the two concepts are distinguishable. See Green, 399 U.S. 

at 155; Commonwealth v. Chmiel, 738 A.2d 406, 420 (Pa. 1999). 

The trial court accordingly erred in its determination that Appellee was 

not an SVP to the extent this conclusion was premised upon the inability of 

Appellee to confront the victim at his SVP hearing. 

Finally, we address the trial court’s rationale that the absence of some 

SVP factors under 42 Pa.C.S.A. § 9799.24 weighed against the finding of 

Appellee being a sexually violent predator. Trial Court Opinion, 10/22/14, at 

5. This appears to raise an issue of sufficiency as opposed to one of 

admissibility. We do not need to address a sufficiency issue, given our 

disposition on the admissibility issue. However, given we are remanding this 

matter to the trial court for further proceedings, we feel compelled to briefly 

comment on this matter. 

While we do not question the trial court’s ability to weigh the factors 

set forth in 42 Pa.C.S.A. § 9799.24, we note it is improper to consider these 

factors “as a checklist where each factor weighs, in some absolute fashion, 

either for or against an SVP classification.” Commonwealth v. Meals, 912 

A.2d 213, 222 (Pa. 2006). Although these non-exclusive factors must be 

considered, a review of these factors makes clear that all of them may not 
J-S13034-15 

- 12 - 

be applicable in every SVP case. It appears the trial court failed to 

appreciate that “the presence or absence of certain factors may simply 

suggest the presence, or absence, of one or more particular types of 

abnormalities[, and that there is] more than one pathway to an issue of 

pathology.” Id.6 

In particular, on the age characteristic of Appellee, the trial court held 

that the record did not support the expert’s determination of a substantial 

age differential. The expert stated there was a five-year age differential, 

and found this difference to be substantial. The trial court did not question 

the expert’s conclusion about the age differential (between five and six 

years), only the conclusion that the age differential was substantial. 

Specifically, the court noted it was not substantial because the victim was 

Appellee’s cousin and Appellee was a minor when the criminal conduct 

____________________________________________ 

6

 Additionally, as we noted in Prendes: 

With regard to the various assessment factors . . ., there is no 

statutory requirement that all of them or any particular number 

of them be present or absent in order to support an SVP 

designation. The factors are not a checklist with each one 

weighing in some necessary fashion for or against SVP 

designation. [Commonwealth v. Brooks, 7 A.3d 852, 863 (Pa. 

Super. 2010)]. Thus, “[t]he Commonwealth does not have to 

show that any certain factor is present or absent in a particular 

case.” Id. 

Prendes, 97 A.3d at 358-59. See also N.T. SVP Hearing, 8/29/14, at 10 

(the expert testified: “It’s not a plus and minus situation. . . . The [absent] 

factors do[] not necessarily mean that that goes against that person being 

deemed a sexually violent predator.”). 
J-S13034-15 

- 13 - 

started. We are not sure, nor does the trial court provide any explanation, 

how the blood relation between the parties or Appellee being a minor when 

the criminal conduct started makes the age differential more or less 

substantial, and if not substantial, how this affects an SVP determination. 

The Crimes Code criminalizes the conduct at issue here if, inter alia, there is 

at least a four-year age differential between the parties and the victim is 

under the age of 16. See 18 Pa.C.S.A. § 3125(a)(8). It may be that this 

age differential weighs differently in SVP determinations, but we fail to see 

how this age differential, deemed sufficient for criminal prosecution by our 

legislature, could mitigate against an SVP determination. The fact that 

Appellee was a minor is not a defense to the offense here. See id. 

Moreover, Appellee pled guilty to engaging in sexual intercourse with his 16-

year old victim when he was 21 years of age. Because we fail to see the 

relevance of any blood relation to age, and disagree that a minimum age 

differential deemed sufficient for criminal prosecution could mitigate against 

an SVP determination, we hold the trial court, to the extent it based its 

denial of an SVP determination upon these reasons, abused its discretion. 

Order vacated. Case remanded for proceedings consistent with this 

memorandum. Jurisdiction relinquished. 

Judgment Entered. 
J-S13034-15 

- 14 - 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 7/14/2015