PA Superior Court: Sexually Violent Predator Determination May Not Be Made Based on Hearsay

Zak T. Goldstein, Esquire - Criminal Defense Lawyer

The Pennsylvania Superior Court has decided the case of Commonwealth v. Aumick, holding that the Commonwealth may not use hearsay alone to prove that a defendant should be designated as a sexually violent predator (“SVP”). The Sex Offender Registration and Notification Act (SORNA) often requires defendants convicted of a sexually violent offense to be assessed on specific criteria to determine if they should be designated as an SVP. The court will then hold a hearing in order to determine the defendant’s status. In this case, the Superior Court rejected the proposition that the Commonwealth could rely only on hearsay testimony at an SVP hearing.

COMMONWEALTH V. AUMICK

The defendant pleaded guilty to one count of corruption of minors, resulting in a sentence of 18 months to 5 years in prison. This conviction required an assessment to determine if the defendant should be designated as an SVP. The Sexual Offenders Assessment Board (SOAB) assesses an individual with a criminal conviction. The assessment must consider a number of factors to determine if the individual has a mental abnormality or personality disorder that raises the likelihood of the individual engaging in sexually violent behavior. Such factors include whether the offense involved more than one victim; whether the individual exceeded necessary means to perform the offense; the nature of the sexual contact with the victim(s); the relationship between the defendant and the victim(s); the age of the victim(s); the extent of cruelty displayed by defendant during the offense; the defendant’s prior criminal history; whether the defendant fully completed prior sentence(s); whether the defendant participated in programs for sexual offenders; the defendant’s age; the defendant’s use of illicit drugs; whether the defendant suffers from a mental disability, mental illness, or other mental abnormality; any behavioral characteristics that relate to the defendant’s conduct; and any other factor that could relate to the defendant’s possibility of reoffending.

After the assessment is completed, the individual and district attorney receive of a hearing. The sentencing court must determine whether the Commonwealth can produce clear and convincing evidence that the individual should receive the designation of SVP at this hearing.

After the defendant’s guilty plea, the court ordered an assessment to determine whether the defendant should be designated as an SVP. Dr. Mary Muscari performed the assessment and concluded that defendant met the criteria. The report was sent to the Commonwealth, who forwarded a copy to the defendant and moved for a hearing. 

The Commonwealth used Muscari’s testimony as the basis for their case. At the hearing, however, Muscari admitted that she considered only documents submitted by third parties. She testified that she formulated her opinion based on both the offense to which the defendant had pleaded guilty as well as the unproven allegations of the victim which were included in the charging documents. Muscari opined that the defendant had a pedophilic disorder, and he met the predatory criteria required due to the conduct he engaged in with his step-granddaughter. She claimed that the defendant was likely to reoffend even though the defendant had not committed prior sexual crimes. 

Defense counsel counsel objected to Muscari’s opinion due to her claim that her assessment was partially based on allegations that to which the defendant did not plead guilty. Muscari also did not interview the defendant or the complainant for her assessment. Despite these objections, the trial court designated the defendant a sexually violent predator. Defense counsel appealed this decision, arguing the designation was based on hearsay related to allegations which were never proven because the defendant’s plea was not to all of the charges.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court reversed the trial court’s SVP designation. The Court concluded that Commonwealth v. McClelland set the precedent that hearsay alone is not sufficient evidence for a prima facie case at a preliminary hearing. If hearsay is not sufficient to hold a defendant for court at the preliminary hearing, then it is also not sufficient for establishing that a defendant is a sexually violent predator. As Muscari served as the only witness and did not provide any non-hearsay proof that the defendant was a sexually violent predator to support her conclusion, the Court determined that the Commonwealth failed to meet its burden of presenting clear and convincing evidence. Most importantly, the Court found that the doctor simply could not rely on hearsay evidence relating to unproven allegations. Had the doctor interviewed either the defendant or the complainant and learned firsthand of those claims, the doctor would have been in a position to decide whether or not to consider them. But here, the expert relied entirely on the hearsay contained in charging documents. Accordingly, the doctor’s opinion was not based on competent evidence, and the Court reversed the trial court’s decision.

Facing Criminal Charges? We can help.

Goldstein Mehta LLC Criminal Defense Lawyers

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also helped numerous clients obtain new trials and sentencing hearings on appeal. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

PA Superior Court: Child Complainant Who Does Not Understand Obligation to Tell the Truth May Not Testify

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of In the Interest of K.B., affirming a trial court’s finding that a child complainant was incompetent to testify at the defendant’s trial. This decision is significant because the Commonwealth routinely calls children to testify and oftentimes these children are not legally competent to testify, but trial courts will nonetheless hold that they are competent. As such, this decision will give defense attorneys additional support in litigating these competency motions.   

In the Interest of K.B.

The complainant, a six-year-old, disclosed to her father that the defendant (also a juvenile) had touched her genitalia on two occasions. A few days later, the complainant participated in a forensic interview where the complainant made an additional disclosure that the defendant had penetrated her. Based on these disclosures, the defendant was charged with one count of rape and three counts of aggravated indecent assault. 

A hearing was subsequently held to determine whether the complainant was competent to testify. At the hearing, the complainant would routinely say that she was in the tenth grade because she thought she was supposed to answer that way. After the hearing, the trial court held that the complaint was incompetent to testify. A few days later, the Commonwealth filed a motion for reconsideration and a motion to reopen testimony requesting that the trial court allow an expert witness to testify regarding the complainant’s testimony. The trial court denied the Commonwealth’s reconsideration motion, but granted the motion to reopen testimony. 

At this subsequent hearing, the Commonwealth called the complainant’s therapist as an expert to testify. At this hearing, the therapist admitted that the complainant “sometimes give something incorrect as an answer if she thinks that’s what she is supposed to say.” Additionally, the therapist testified that the complainant “does not understand the impact or the seriousness of the allegations” she made against the defendant. At the conclusion of the hearing, the trial court reaffirmed its finding that the complainant was incompetent to testify at trial. The Commonwealth then filed an interlocutory appeal. On appeal, the Commonwealth argued that the trial court abused its discretion by finding that the complainant was incompetent to testify.   

What Rule Governs Competency? 

Rule 601 of the Pennsylvania Rules of Evidence governs competency. The rule provides: 

a) General Rule. Every person is competent to be a witness except as otherwise provided by statute or in these rules.

(b) Disqualification for Specific Defects. A person is incompetent to testify if the court finds that because of a mental condition or immaturity the person:

(1) is, or was, at any relevant time, incapable of perceiving accurately;

(2) is unable to express himself or herself so as to be understood either directly or through an interpreter;

(3) has an impaired memory; or

(4) does not sufficiently understand the duty to tell the truth.

 In regards to children, Pennsylvania appellate courts have stated that “the capacity of young children to testify has always been a concern as their immaturity can impact their ability to meet the minimal legal requirements of competency.” Pennsylvania courts have also held that children can have a difficult time distinguishing fantasy from reality; can want to give an answer that “pleases” the questioner; and have a limited capacity for accurate memory. As such, for child witnesses under the age of 14, a trial court must make an independent determination of competency which requires a finding that the witness possess 1) a capacity to communicate, 2) the mental capacity to observe the actual occurrence and the capacity of remembering what it is that he or she is called to testify about; and 3) a consciousness of the duty to speak the truth. 

The Pennsylvania Superior Court’s Decision  

The Pennsylvania Superior Court affirmed the trial court’s decision. In its opinion, the Superior Court held that the record supported the trial court’s findings that the complainant did not sufficiently understand her duty to tell the truth and was unable to perceive accurately. Specifically, Superior Court gave great weight to the fact that the six-year-old complainant would routinely say yes when asked if she was in the 10th grade. Additionally, the Superior Court also found it concerning that the complainant was unable to perceive the nature of the events about which she was called to testify. As such, the Superior Court found that the trial court did not abuse its discretion and therefore the Commonwealth will not be able to call the complainant to testify at the defendant’s trial.  

Facing Criminal Charges? We Can Help. 

Philadelphia Criminal Defense Lawyers

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also obtained new trials and sentencing hearings for clients on appeal and in post-conviction litigation. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

PA Superior Court: Police Must Obtain “Meaningful Consent” Before Searching a Cell Phone Without a Warrant

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Gallagher, holding that the trial court properly suppressed evidence collected from a defendant’s phone because the Commonwealth had not established that the defendant provided “meaningful consent to the invasive search it performed.” In this case, the defendant had actually consented to a search, but the Superior Court ultimately found that the extraction of the full contents of the phone exceeded the scope of the defendant’s consent. Therefore, the evidence should be suppressed. 

Commonwealth v. Gallagher

An officer with the Adams Township Police Department responded to a 911 dispatch from a 16-year-old female caller reporting that she had been the victim of an attempted kidnapping and had escaped and was in hiding. She testified that she also had suffered a head injury. The officer drove to the complainant’s stated location and found her. According to the officer, she was “hysterical, panicky, and scared.” The complainant told the officer that she had been picked up in McKeesport by the defendant and his friend. They stopped at a gas station and at a cemetery where they drank alcohol. Afterwards, they went to meet a friend. She did not remember anything else. She claimed that she woke up on the side of a road with someone on top of her and their hand down the front of her pants. She also claimed that her pants and underwear were pulled down. She then ran away and hid in the woods. 

The complainant said the defendant was the one on top of her. She was eventually transported to a local hospital to conduct a sexual assault examination. An unknown amount of time later, the defendant was arrested under suspicion for driving under the influence. He was given his Miranda rights and interviewed for about an hour and a half. During the interrogation, a detective asked the defendant if he could look at his cell phone. The defendant did not object and showed the detective a picture of the two girls he was with the previous weekend. The defendant also signed a consent to the search of stored electronic media. The relevant part of this statement said “I [defendant] having been advised of my rights by [the police] consent to having my computer hardware and all equipment which can collect, analyze, create, display, convert, store, conceal, or transmit electronic, magnetic, optical, or similar computer impulses or data.” The police then seized evidence from the defendant’s phone. 

Police eventually arrested the defendant and charged him with attempted rape and other offenses. The defendant filed a pretrial motion seeking suppression of evidence from the “phone dump” conducted by the police during the interview. At the hearing, the trial court granted the defendant’s pretrial suppression motion, suppressing all the evidence that was seized from the defendant’s cellphone. The Commonwealth filed an appeal and argued that this suppression order substantially handicapped its prosecution. 

The Superior Court’s Panel Decision

On appeal, the Commonwealth argued that “[c]ommon sense and a view of the surrounding situation would indicate to any reasonable, semi-intelligent person that if a request is being made of him, the converse option is also a possible right available to him.” The defendant argued that the consent form that he signed “did not advise him what his rights where, and [the detective] never told him that he was free to leave and free to withhold consent.” A three-member panel of the Superior Court agreed with the defendant and affirmed the trial court’s decision. The Commonwealth then filed an application for re-argument with a full panel of the Superior Court.

The Pennsylvania Superior Court’s En Banc Decision  

The Pennsylvania Superior Court affirmed the trial court’s decision. The Superior Court agreed with the trial court that “the Commonwealth did not establish that the defendant consented to the cell phone dump” and that the form used by detectives “fails to explain [the defendant’s] rights with regard to stored data.” Additionally, the form did not explain what the defendant was consenting to. Further, the detective asking the defendant “if he minded if we looked at his phone” did not make it clear that the police intended to do a complete data dump of his phone. Therefore, the defendant must still stand trial for the aforementioned charges, but the Commonwealth will not be allowed to use the evidence they obtained from his phone at trial.    

Facing Criminal Charges? We Can Help. 

Goldstein Mehta LLC Criminal Defense Lawyers

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

PA Superior Court: Exposing Genitals in Public Place Sufficient for Indecent Exposure Conviction Even If No One Around

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Rudolf, holding that there is sufficient evidence to convict a defendant of indecent exposure when there is evidence that a defendant exposed his or her genitals in a public place. This decision seems somewhat surprising as the statute seems to require that there at least be a risk that someone else would encounter the person before criminal liability should attach.

Commonwealth v. Rudolf

A Lower Windsor Township Police officer was on patrol in a marked police car. At approximately 4:00 AM, he drove past an area with a large parking lot, boat launch, park, and a children’s playground. The officer saw the defendant standing by himself in the playground wearing a bright yellow sleeveless shirt and no pants. He was able to see the defendant’s genitalia. The officer then got out of his vehicle and began to move his spotlight toward the defendant. The defendant noticed the officer and then ran behind a tree. The officer then began to yell at the defendant. Eventually, after an unknown period of time, the defendant sat down at a picnic table and appeared to be putting on shorts. 

The officer then began speaking with the defendant. The defendant told the officer that he was in the park to work out, but the officer did not observe any fitness equipment nearby. However, the officer did notice that the defendant had a giant bottle of lotion with him. The officer then told the defendant to leave the area. However, about a half an hour later the same officer saw the defendant about 600 yards away. The officer again told the defendant to leave the area. Later on, the defendant was arrested and charged with open lewdness and indecent exposure. 

The defendant elected to proceed by jury trial. At trial, the above facts were placed into the record. The defendant testified on his behalf at trial. He testified that he drove to the playground to work out. Specifically, he would use “the monkey bars for pull-ups,…sit-ups, and leg raises, and that kind of stuff.” As he began to change his shorts, he noticed a light coming rom a car about a half a mile away. Because he was in a “compromising situation” he hid behind a bush. The defendant also stated that he was not naked the second time he saw the officer, but instead was wearing “pretty skimpy” running shorts. Additionally, the defense called a private detective who photographed the views of the playground at 4:00 AM and testified that it was incredibly dark and difficult to capture anything on film. 

At the conclusion of the trial, the jury returned a verdict of guilty for the charges of open lewdness and indecent exposure. The case proceeded immediately to sentencing where the trial court imposed 12 months’ probation for the charge of open lewdness and a concurrent sentence of 24 months’ probation for indecent exposure. The defendant did not file any post-sentence motions. The defendant’s attorney then withdrew from the case. The defendant then filed a pro se notice of appeal. The defendant later hired an attorney to represent him on appeal. The defendant raised two issues on appeal. For purposes of this blog, only the issue of whether the evidence was sufficient to support his conviction for indecent exposure will be addressed. 

What is Indecent Exposure?

18 Pa. C.S.A. § 3127 is the statute that governs the crime of indecent exposure. It states: 

(a) Offense defined.--A person commits indecent exposure if that person exposes his or her genitals in any public place or in any place where there are present other persons under circumstances in which he or she knows or should know that this conduct is likely to offend, affront or alarm.

(b) Grading.--If the person knows or should have known that any of the persons present are less than 16 years of age, indecent exposure under subsection (a) is a misdemeanor of the first degree. Otherwise, indecent exposure under subsection (a) is a misdemeanor of the second degree.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court affirmed the defendant’s conviction for indecent exposure. On appeal, the defendant argued that the Commonwealth failed to meet its burden because it did not establish that other persons were present or that he knew or should have known that his conduct was “likely to offend, affront, or alarm.” Specifically, the defendant argued that because where he was changing was “incredibly dark” and there was no one present other than the police officer that he had “no reason to believe that such conduct would likely to offend, affront, or alarm anyone.”

The Superior Court was not persuaded by this argument. The Superior Court reviewed 18 Pa. C.S.A. § 3127 and found that once the Commonwealth has shown that the act occurs in a public place, then it is not required to show that other people were present or that the actor knew or should have known that their conduct was likely to offend, affront, or alarm. In the instant case, it was undisputed that the defendant was in a public playground. Therefore, because the defendant’s actions took place in a public setting, the Commonwealth did not have to prove that he knew or should have known that his conduct was likely to offend, affront, or alarm. The defendant also did not get relief on his other claim. Consequently, the defendant’s convictions will stand and he will be forced to serve his probation sentence.   

Facing Criminal Charges? We Can Help. 

Goldstein Mehta LLC Criminal Defense Lawyers

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.