John Aumick filed an appeal from the trial court’s collateral civil finding designating him a sexually violent predator (SVP) under the Sex Offender Registration and Notification Act (SORNA), thereby making him subject to lifetime registration requirements.
SORNA mandates that an offender convicted of a sexually violent offense must be assessed to determine whether he should be designated as an SVP. This case sets out a rather tidy outline of that process, in addition to holding that the use of unproven allegations alone to designate a person as an SVP by clear and convincing evidence is improper where a defendant has no prior or subsequent opportunity to disprove the hearsay allegations.
In Aumick’s case, the trial court ordered that Aumick be assessed by the SOAB to determine whether he should be designated as an SVP. In its report, prepared by Mary E. Muscari, Ph.D., SOAB concluded that Aumick met the SVP designation criteria. The report was forwarded to the Commonwealth, who praeciped for a hearing and forwarded a copy of the report to Aumick.
At the hearing, the Commonwealth attempted to prove its case based solely on Dr. Muscari’s testimony during which, on cross-examination, she conceded that she did not interview Aumick, the victim or watch the victim’s interview that was offered at the preliminary hearing. And, she also conceded that her assessment and opinion were based solely on allegations to which Aumick did not plead guilty.
The trial court found Aumick to be an SVP and Aumick appealed, arguing that his SVP designation should be reversed because Dr. Muscari’s expert opinion was based on unproven hearsay allegations contained in collateral third-party documents.
The Superior Court agreed, holding that “if hearsay alone is insufficient to make out a prima facie case at a preliminary hearing, then the use of unproven allegations alone to designate a person as an SVP is also improper.”
Accordingly, the Court concluded that “because Dr. Muscari’s opinion and her report were based on unproven allegations, the trial court should have excluded that evidence and her opinion based on that evidence. Furthermore, because she was its only witness, without any proof to support the underlying claims that formed the basis of Dr. Muscari’s opinion, the Commonwealth failed to present clear and convincing evidence that Aumick qualifies as an SVP.”
