July 31, 2009
COMMONWEALTH OF PENNSYLVANIA, APPELLEE
BARMI FUENTES, APPELLANT
Appeal from the Judgment of Sentence February 29, 2008, In the Court of Common Pleas of Philadelphia County, Criminal Division at No. CP-51-CR-0312481-2006.
The opinion of the court was delivered by: Bender, J
Petition for Reargument Filed August 13, 2009
BEFORE: LALLY-GREEN, BENDER and FITZGERALD*fn1, JJ.
¶ 1 Barmi Fuentes appeals the judgment of sentence imposed following his entry of a negotiated guilty plea to Aggravated Indecent Assault and three counts of Robbery. 18 Pa.C.S. §§ 3125, 3701(a)(1) (respectively). On appeal, Fuentes seeks review of the trial court's determination that he is a sexually violent predator (SVP) under Megan's Law.*fn2 For the reasons that follow, we reverse the trial court's SVP determination and discharge all requirements attendant to it. The judgment of sentence is otherwise affirmed.
¶ 2 The trial court has ably summarized the facts and procedural history of this action as follows:
[Fuentes] approached the 16 year-old victim, her sister, and her sister's boyfriend in a threatening manner; all victims believed [Fuentes] had a gun. [Fuentes] robbed each of the complainants, forced the 16 year-old victim into an alley, fondled her vaginal area, exposed his penis, forced her to touch his penis, forced her against a wall, pulled down her pants, and inserted his finger into her vagina. [Fuentes] threatened to kill her if she told anyone (N.T. 5/30/07, p. 12-13; Megan's Law Assessment, p. 1)....
On May 3, 2007, [Fuentes] pleaded guilty to aggravated assault, and three counts of third degree felony robbery. On February 29, 2008, a Megan's Law hearing and sentencing was conducted before [the] court, after which [Fuentes] was determined to be a sexually violent predator (N.T. 2/29/08, p. 63-64). [Fuentes] was then sentenced to 29 to 102 months incarceration, followed by four years of reporting probation (Id. at 73). No post sentence motion is contained in [the certified record].
On March 20, 2008, [Fuentes] filed a Notice of Appeal. On March 26, 2008, [the trial] court ordered [Fuentes] to file a Statement of Errors Complained of on Appeal within twenty-one days of the Order, pursuant to Pa.R.A.P. 1925(b). On April 15, 2008, [Fuentes] filed his Statement and request for an extension of time to file [a supplemental statement after transcription of the notes of testimony. Appellant's petition for extension of time was denied by the court on April 22, 2008].
Trial Court Opinion, 10/3/08, at 1-2.
¶ 3 Upon receipt of Fuentes's statement pursuant to Rule 1925(b), the trial court filed its corresponding Rule 1925(a) opinion addressing the issues Fuentes raised. Fuentes now raises the following question for our review:
1. Did not the Commonwealth fail to prove by clear and convincing evidence that [A]ppellant met the statutory definition of a "sexually violent predator" (SVP) where; a) the Commonwealth failed to prove by clear and convincing evidence that [A]ppellant suffered from Antisocial Personality Disorder (ASPD), and b) the Commonwealth failed to prove by clear and convincing evidence that
[A]ppellant was 'likely' to engage in future predatory sexual violence, where the instant offense was his only arrest for a sexual crime?
Brief for Appellant at 3.
¶ 4 In support of his question, Fuentes argues that the evidence adduced in support of his SVP designation failed to satisfy either of the required statutory prongs and that, consequently, the evidence was not legally sufficient to prove that he is an SVP. "In reviewing the sufficiency of the evidence regarding the determination of SVP status, we will reverse the trial court only if the Commonwealth has not presented clear and convincing evidence sufficient to enable the trial court to determine that each element required by the statute has been satisfied." Commonwealth v. Plucinski, 868 A.2d 20, 25 (Pa. Super. 2005). The reviewing court must view the evidence in the light most favorable to the Commonwealth. Id. We may not reweigh the evidence or substitute our judgment for that of the trial court. Id. The "clear and convincing" evidence standard requires evidence that is "so clear, direct, weighty and convincing" as to enable the factfinder to reach "a clear conviction, without hesitancy, of the truth of the precise facts" at issue.*fn3 Id. The factfinder is free to believe all, part or none of the evidence presented. Haughwout, 837 A.2d at 484.
¶ 5 A challenge to the sufficiency of the evidence is a question of law of which our scope of review is plenary and our standard of review, de novo. See Meals, 912 A.2d at 218. An SVP is defined as a "person who has been convicted of a sexually violent offense as set forth in [42 Pa.C.S.] section 9795.1 (relating to registration) and who is determined to be a sexually violent predator under section 9795.4 (relating to assessments) due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses." Id.*fn4 In this context, a "mental abnormality" is a "congenital or acquired condition of a person 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." 42 Pa.C.S. § 9792. Moreover, "predatory" conduct, which is indispensable to the designation, is defined as an "act directed at a stranger or at a person with whom a relationship has been initiated, established, maintained or promoted, in whole or in part, in order to facilitate or support victimization." Meals, 912 A.2d at 218-19 (quoting 42 Pa.C.S. § 9792).
¶ 6 The statute specifically prescribes the process by which an individual convicted of a sex offense may be designated an SVP. Haughwout, 837 A.2d at 484. After a defendant is convicted of an offense specified in section 9795.1, the trial court must order the State Sexual Offenders Assessment Board to assess the defendant for the appropriateness of an SVP classification. See 42 Pa.C.S. § 9795.4(a). The administrative officer of the Assessment Board then assigns one of its members to conduct the assessment pursuant to section 9795.4(b). The statute specifies that the assessment must include, but is not limited to, an examination of the following factors:
(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.
(iv) 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.
(iii) Any 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.
42 Pa.C.S. § 9795.4(b). Following the submission of a written report containing the assessment and a praecipe filed by the district attorney, the trial court must hold a hearing. 42 Pa.C.S. § 9795.4(e). As noted above, the Commonwealth bears the burden of proving that a defendant is an SVP by "clear and convincing" evidence. See Commonwealth v. Charlton, 902 A.2d 554, 564 (Pa. Super. 2006). See also Meals, 912 A.2d at 219 (explaining the requirements of proof by "clear and convincing evidence"). During the hearing on the SVP classification, the defendant is entitled to certain procedural protections:
The individual and district attorney shall be given notice of the hearing and an opportunity to be heard, the right to call witnesses, the right to call expert witnesses and the right to cross-examine witnesses. In addition, the individual shall have the right to counsel and to have a lawyer appointed to represent him if he cannot afford one. If the individual requests another expert assessment, the individual shall provide a copy of the expert assessment to the district attorney prior to the hearing.
42 Pa.C.S. § 9795.4(e)(2).
¶ 7 In this case, the trial court conducted the required SVP hearing on February 29, 2008, and designated Fuentes as an SVP based on the evaluation of Barbara E. Ziv, M.D., a member of the Sexual Offenders Assessment Board who conducted the assessment in this case. The trial court explained its SVP designation as follows:
[Fuentes] raised the issue at the Megan's Law hearing that the present crime was his only arrest and conviction for a sexual offense. [N.T., 2/29/08, at 44]. Dr. Barbara Ziv explained that this factor is "totally irrelevant in terms of criteria for a specific paraphilia", and that "it is unlikely that [Fuentes], this is the first and only time that he's acted in a deviant sexual way" (id. at 25-26). She explained that, in this case, based on his arrest record, [Fuentes] "passed a threshold" where there was "enough information just by his arrest record only" that he meets the criteria for anti-social personality disorder (id. at 27-28, 31, 33-34). Dr. Ziv also testified that [Fuentes] was likely to re-offend based on "the anti-social personality, the stranger victim, the deviant sexual interest and his age" and the fact that [Fuentes's] behavior escalated (id. at 42). Finally, Dr. Ziv testified that people who have already committed a sexual offense are at high risk of re-offending, however, "[t]he two strongest [indicators] are deviant sexual interest and antisocial traits" (id. at 44-45). Both were present in this case (id. at 46). There was no report presented by [Fuentes] from another doctor to dispute Dr. Ziv's findings (id. at 47). See Commonwealth v. Bishop, 936 A.2d 1136 [(Pa. Super. 2007)], appeal denied, 951 A.2d 1159 (Pa. 2008) (citations omitted) (where "[a]ppellant argue[d] that he should not have been deemed an SVP because he did not meet all the criteria set forth in [42 Pa.C.S. § 9795.4(b)]" claiming that "this was his first sexual offense, he had no prior criminal record, there was only one victim, he does not have a substance abuse problem, and the victim was an adult, not a child", Court stated that "[a]ppellant receives no 'points' for these factors in his case" but "misses the point"; "[t]he considerations set forth in 42 Pa.C.S. § 9795.4(b) are not a simple checklist. The considerations are separate and weighed accordingly"). For the same reasons stated in Bishop, supra, [Fuentes's] claim that the present crime is his only arrest for a sexual crime "misses the point", and provides no relief.
Trial Court Opinion, 10/3/08, at 2-3.
¶ 8 In support of his challenge to the SVP designation, Fuentes first assails Dr. Ziv's conclusions and methodology, asserting that she did not have sufficient information to render her diagnosis of Antisocial Personality Disorder or to opine that he was likely to engage in future acts of sexual violence. Brief for Appellant at 15, 22. He argues more specifically that because he did not grant a personal interview and Dr. Ziv had available only his criminal record and "no information about his background, education, economic circumstances, health, work history or home life[,]" her "conclusions were not proven by clear and convincing evidence." Brief for Appellant at 10-11. Fuentes similarly asserts that the Commonwealth failed to prove that he "was 'likely'" to re-offend in the future. Moreover, he posits that because Dr. Ziv "admitted that a prior sexual offense is one of the best predictors of future sexual violence, and [he] had never been arrested or charged with any previous sexual offense" that the Commonwealth failed to sustain its burden of proof in this regard. Id. at 11. Thus, Fuentes concludes that the trial court erred in finding him to be an SVP.
¶ 9 At the Megan's Law hearing, Dr. Ziv recounted the factors she considered in arriving at her diagnosis of Fuentes:
Q: You said that you can make an evaluation of [Fuentes] despite him [not] participating in an interview?
Q: What materials did you receive to make an assessment?
A: The records that were provided to me by the Sexual Offenders Assessment Board, which are... primarily limited to police records in this case.
Q: When you do a Sexual Offenders Assessment Board evaluation, what are the criteria you look at?
A: Well, the offenders are offered an opportunity to participate, which would be an interview. In this case, [Fuentes] declined to be interviewed. However, the assessment of sex offenders really relies more upon the standard material than it does upon information that renders an interview necessary.
In order to meet the criteria for a sexually violent predator, an individual needs to meet the two prongs of the statute, which are the issue of predatory behavior. The statute defines "predatory behavior" as an act directed at a stranger or a person with whom a relationship has been initiated, established, maintained or promoted in whole or in part in order to facilitate or support victimization. The second issue is the issue of personality disordere, [sic] mental abnormality, that renders an individual likely to reoffend.
[Fuentes] met the criteria of both of these arms of the statute. In terms of predatory behavior, he pled guilty to aggravated assault -- aggravated indecent assault. He had no previous relationship with the victim, and clearly that meets the criteria for predatory behavior in that he initiated this relationship for the purpose of sexual victimization.
In addition, [Fuentes] meets the criteria for antisocial personality disorder. The criteria for antisocial personality disorder as defined by the DSM-IV*fn5 are as follows. A pervasive pattern of disregard for and violation of the rights of others occurring since age 15 years, as indicated by three or more of the following.
One, failure to conform to social norms with respect to lawful behaviors as indicated by repeatedly performing acts that are ground[s] for arrest. [Fuentes's] criminal arrest history began when he was 12 years old and has continued into adulthood.
Two, deceitfulness, as indicated by repeated lying, use of aliases or conning others for personal profit or pleasure. [Fuentes] has a history of using aliases. He has used Jose Gonzalez and Barry Gonzalez in the past when he was arrested.
Impulsivity or failure to plan ahead. [Fuentes's] life has been characterized by impulsivity with respect to his unlawful behaviors.
Four, irritability and aggressiveness, as indicated by repeated physical fights or assaults. I do not have information about this particular symptom.
Reckless disregard for safety of others. [Fuentes's] conviction for aggravated indecent assault indicates such disregard.
Consistent irresponsibility as indicated by repeated failure to sustain consistent work behavior or honor financial obligations. Although his complete work history is not known, he has no known stable employment even though he was reportedly employed at the Washington Distribution Center at the time of his arrest.
Lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated or stolen from another. I don't have any information about this.
, the individual is at least 18 years old. [Fuentes] was 24 years old at the time of the indecent assault of [the victim].
There's evidence of conduct disorder before age 15. [Fuentes] was adjudicated delinquent at age 12.
The occurrence of antisocial behavior is not exclusively during the course of schizophrenia or manic episode and there is no evidence that [Fuentes] was acutely psychotic or manic at the time of this assault.
Q: So it is your opinion today that [Fuentes] meets the definition of a sexually violent predator under the Megan's Law statute?
Q: Is this to a reasonable degree of psychiatric certainty?
Q: What facts did you receive for this instant offense?
A: I received the complaint and the police reports, which indicated that on March 9, 2006, [the victim], who was 16 years old, was with her twin sister and a 19-year-old male. They were approached by [Fuentes] who told her that he had a gun. The offender took a jacket, wallet and day planner from the man and then he searched the victim and her sister for money. He took an earring from the victim and forced her into an alley. There he kissed her, fondled her vaginal area, exposed his penis and forced her to touch it. He then forced her up against the wall, pulled down her pants and digitally penetrated her vagina. He reportedly threatened to kill her if she told anybody.
Q: Were those the facts you used to assess whether this defendant has a mental abnormality or personality disorder and whether or not it was predatory?
A: Those are the facts that I used to determine whether it was predatory. His criminal history, which, by the way, is not always―you don't always get enough information from the records that are provided in order to make a determination about mental disorder or abnormality, but in this case, there is sufficient information to make that determination.
Q: You said you also went through his criminal history. What criminal history did you go through?
A: [Fuentes] has a history of three arrests as a juvenile. Age 12 for robbery, theft, receiving stolen property, simple assault, recklessly endangering and criminal conspiracy. He was adjudicated delinquent, received probation. He failed to show up in court for a first listing and had a bench warrant issued for his arrest.
At age 16 he was again arrested for theft, receiving stolen property and unauthorized use of an auto. He was adjudicated delinquent, received probation. He violated probation and on December 13, 1999, he was committed to a private juvenile facility where he remained until May 12, 2000, when he was discharged at the age of 18.
[At] age 17 he was also arrested for theft, RSP and unauthorized use of an auto. He was adjudicated delinquent again. At the time that he was released when he was 18, his sentence was suspended. In addition, he has three prior [adult] arrests prior to this arrest on this assessment case.
Q: What specifically about that criminal history in your assessment indicates that he has a personality disorder?
A: Well, number one, he has a wide variety of criminal acts. His acts began when he was 12. He was adjudicated delinquent. That has been persistent in that it has continued beyond into adulthood despite the fact that he was put in a juvenile facility, one that is presumingly [sic] designed to address those behaviors, and that he continues to act in a criminal manner after he reached adulthood is indicative of an antisocial personality disorder.
Q: What specifically about the facts that you reviewed indicated predatory behavior?
A: Well, the fact that he was unacquainted with the victim and he forced her into an alley and then sexually assaulted her. That's the definition of predatory behavior.
Q: Finally, I'd like to go through your assessment starting on Page 5 about the factors that you looked at and how they related to the offense.
A: Yes. The statute asks that you address certain factors. There is one victim in this case. He sexually assaulted a stranger. Multiple assaults are associated with a higher risk of recidivism. He exceeded the means necessary to achieve the offense by threatening the victim, she thought, with a gun and threatening to kill her.
The nature of the sexual contact involves intention, deliberate, involved and persistent risk taking. He was unrelated to the victim and was a stranger to [her]. The victim was 16 years old at the time of the assault. He displayed unusual cruelty toward her by threatening her with death.
At the time that I did this, the mental capacity of the victim was not specifically known but I have since learned that she has mild mental retardation. He has no known prior offense history.
Q: What factors in those are specifically correlated with a risk to reoffend?
A: The two most robust factors in all the literature associated with recidivism risk are antisocial traits and deviant sexual interest. Obviously, raping somebody or sexually assaulting somebody, a stranger, is deviant sexual interest and he has, as I have talked about, a repeated pattern of antisocial behavior. In addition, the fact that it's a stranger victim and that he was less than 25 years old are also associated with recidivism risks.
Q: Finally, all of these conclusions are within a reasonable degree of medical certainty?
N.T., 2/29/08, at 9-11, 12-17.
¶ 10 We do not agree with the trial court that Dr. Ziv's testimony and diagnosis, which was based solely upon Fuentes's criminal record, supports the conclusion that the Commonwealth met its burden to prove each element of the SVP classification. Although the trial court apparently found Dr. Ziv credible, elements of her testimony are not legally competent and cannot, as a matter of law, be deemed "clear and convincing evidence."
This issue stands at the heart of Fuentes's claim. Brief for Appellant at 25 ("Dr. Ziv's opinion, by default, is simply her best guess-she looked at the very limited record provided, considered limited factors, and then, out of little more than thin air, opined that appellant was likely to engage in future predatory sexually violent offenses following his release.").
¶ 11 We remain mindful that generally the opinions of an expert are themselves evidence and that a defendant's challenge to them is more usually to be directed to evidentiary weight than to sufficiency. See Commonwealth v. Feucht, 955 A.2d 377, 382 (Pa. Super. 2008) (citing Meals, 912 A.2d at 223) ("[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."). Nevertheless, to the extent the assessment of the Board member tendering the SVP assessment constitutes expert opinion, see Meals, 912 A.2d at 224 (quoting McMahon v. Young, 276 A.2d 534, 535 (Pa. 1971)), that assessment and the Board member's testimony concerning it must conform to the Rules of Evidence governing expert opinion testimony.
¶ 12 Rule 703 provides affirmative direction on this point, prescribing "a threshold for admission of expert testimony dependant upon the extent to which the expert's opinion is based on facts and data[.]" Helpin v. Trustees of University of Pennsylvania, 969 A.2d 601, 617 (Pa. Super. 2009).
Rule 703. Bases of opinion testimony by experts
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
Pa.R.E. 703. Consistent with this Rule, "expert testimony is incompetent if it lacks an adequate basis in fact." Helpin, 969 A.2d at 617 (citing Viener v. Jacobs, 834 A.2d 546, 558 (Pa. Super. 2003)).
"While an expert's opinion need not be based on absolute certainty, an opinion based on mere possibilities is not competent evidence. This means that expert testimony cannot be based solely upon conjecture or surmise." [Viener, 834 A.2d at 546]. Rather, "[an expert's] assumptions must be based upon such facts as the jury would be warranted in finding from the evidence." Id.
Helpin, 969 A.2d at 617.
¶ 13 Only if evidence is competent to begin with can it be deemed "so clear, direct, weighty and convincing" as to enable the factfinder to reach "a clear conviction, without hesitancy, of the truth of the precise facts" at issue.
Directly stated, an SVP designation can only be based on competent evidence that each of the specified elements of section 9795.4(e)(3) is established-efforts by the Commonwealth to cloak inadequately substantiated assertions under the mantle of expert opinion will not suffice for this purpose. Just as the opinion of an expert in any other proceeding, either civil or criminal, is subject to disqualification if rendered without an adequate basis derived from demonstrable fact, so must the opinion of an SVP Board member or other expert conducting an evaluation of a sex offender. To do otherwise allows imposition of the gravely serious SVP designation on arguably lesser evidence than we require in a civil tort action.
¶ 14 Upon review of the record, we do not find sufficient competent evidence to support Dr. Ziv's testimony on several critical points and, on others, we find her inferences contradicted by facts of record. As a consequence, we are compelled to find her opinion deficient as to both the determination of mental abnormality of antisocial personality disorder and the likelihood that Fuentes is "likely to engage in predatory sexually violent offenses." 42 Pa.C.S. § 9792. As a starting point, we note that in reaching an assessment of Fuentes's potential for future sexually predatory behavior, Dr. Ziv opined that the absence from his record of any prior sex offense is "totally irrelevant in terms of criteria for a specific paraphilia."*fn6 N.T., 2/29/08, at 25. Attempting to buttress her opinion on cross-examination, Dr. Ziv then offered an equivocation on which the trial court expressly relied in reaching its own determination: "it is unlikely that [Fuentes], this is the first and only time that he's acted in a deviant sexual way." Trial Court Opinion, 10/3/08, at 2-3 (quoting N.T., 2/29/08, at 25-26) (emphasis added); see also N.T., 2/29/08, at 24 ("[M]y not being able to render a diagnosis of a paraphilia in this case doesn't mean he doesn't have a paraphilia."). Unfortunately, Dr. Ziv's assertions on this point, which bears on the ultimate issue in her evaluation, are the rankest sort of speculation.
Nothing in the background information the doctor cited offered any basis for the suggestive testimony she rendered, which appears to reach a conclusion based not on what the record showed but instead on what it did not show. Nevertheless, this freighted appraisal appears to be the only factor beyond Fuentes's guilty plea that Dr. Ziv acknowledged in reaching her determination that Fuentes was likely to engage in future acts of sexual violence. N.T., 2/29/08, at 21-22. Based upon our case law and the Rules of Evidence, this simply is not enough for a competent assessment.
¶ 15 Concerning the second of the statutory criteria, i.e., the extent to which the defendant is afflicted by a personality disorder that makes him more likely to re-offend, Dr. Ziv conceded that she examined only Fuentes's criminal records, which included three juvenile adjudications, one adult conviction and two other adult arrests in which the charges were later dismissed. Not surprisingly, these records suggested a propensity toward criminal acts. Indeed, Dr. Ziv based her conclusion of Antisocial Personality Disorder on little more than the three juvenile adjudications, the first committed when Fuentes was only 12 and the remaining two which resulted from "unauthorized use of a motor vehicle."*fn7. Although the criminal report on which Dr. Ziv relied sets forth the charges and their respective dispositions, there are no factual allegations to accompany the report. Id. at 21 ("Q. You were provided some information as to what the outcome was, either adjudication or convictions, correct, but you were not actually provided any of the police reports or documents from any of his other arrests, correct?... A. I believe that I was not."). Moreover, Dr. Ziv gave no indication of having benefited from any form of pre-disposition investigation germane either to the juvenile offenses or to Fuentes's single adult conviction and conceded that she had no access to Fuentes's school records or any information on his juvenile placements. Id. at 22. Having reviewed the same materials that Dr. Ziv had available, we cannot discern any of the facts underlying Fuentes's adjudications or conviction-and neither could Dr. Ziv. Consequently, the opinion she derived from them that Fuentes suffers from Antisocial Personality Disorder is questionable and can be sustained only by reference to broad generalizations based on assertions of fact that are either incorrect or unsubstantiated.
¶ 16 This deficiency is evident in Dr. Ziv's discussion of the criteria from the DSM-IV on which she relied to reach her conclusion that Fuentes displays Antisocial Personality Disorder and is therefore rendered more likely to re- offend. Dr. Ziv found that Fuentes displayed "a pervasive pattern of disregard for and violation of the rights of others occurring since age 15 years, as indicated by:" (1) "Appellant's failure to conform to social norms with respect to lawful behaviors as indicated by repeatedly performing acts that are grounds for arrest;" (2) "Deceitfulness," as indicated by "repeated lying, use of aliases or conning others for personal profit or pleasure;" (3) Impulsivity or failure to plan ahead (i.e., "Mr. Fuentes'[s] life has been characterized by impulsivity with respect to his unlawful behaviors"); (4) "[R]eckless disregard for safety of self or others" based upon his conviction in the within action; and, (5) "Consistent irresponsibility," as indicated by "repeated failure to sustain consistent work behavior or honor financial obligations." N.T., 2/29/08, at 9-11. Dr. Ziv supported her conclusion further by reference to Fuentes's adjudication of delinquency at age 12, which she deemed (admittedly without access to the details of the offenses at issue) to constitute evidence of a "conduct disorder before age 15." Id. at 11.
¶ 17 Considered closely, these conclusions do not bear serious scrutiny. Concerning Fuentes's "repeatedly performing acts that are grounds for arrest," Dr. Ziv failed to draw any connection between Fuentes's acts and the likelihood that he will commit another sex offense, which is the essence of the evaluation she undertook. See Meals, 912 A.2d at 215-16. While Fuentes has three adjudications as a juvenile and one conviction as an adult, these crimes consisted substantially of misdemeanor property violations (e.g., unauthorized use of a motor vehicle). In the absence of an explanation from Dr. Ziv of the specific predictive value of these offenses to Fuentes's purported predisposition to commit additional sex offenses, the extent to which her conclusion constitutes competent evidence is debatable at best. See Helpin, 969 A.2d at 617 ("While an expert's opinion need not be based on absolute certainty, an opinion based on mere possibilities is not competent evidence."). Concerning Dr. Ziv's second conclusion, regarding "[d]eceitfulness," as indicated by "repeated lying, use of aliases or conning others for personal profit or pleasure," (emphasis added), the records available to the doctor offer no documentation of the specific reasons that Fuentes used the two aliases she described. Consequently, there is no basis in fact for the doctor's conclusion that this cited factor supports her determination of Anti-Social Personality Disorder. See id. ("[E]xpert testimony cannot be based solely upon conjecture or surmise."). Concerning the fourth cited factor, "repeated failure to sustain consistent work behavior or honor financial obligations," Dr. Ziv admitted that she had no information concerning Fuentes's employment "even though he was reportedly employed at the Washington Distribution Center at the time of his arrest." N.T., 2/29/08 at 10. In fact, the certified record reveals that Fuentes was employed full time at the Washington Distribution Center at the time of his arrest. Thus, in this regard Dr. Ziv's conclusion appears to discount a fact highly material to her analysis. See id. Lastly, to the extent that Dr. Ziv concluded that Fuentes's adjudication of delinquency at the age of 12 constituted "evidence of Conduct Disorder with onset before age 15 years," we find no substantiation, either in Dr. Ziv's professional assessment or in the record. Declaring a proposition does not make it so-even for an expert witness. See Helpin, 969 A.2d at 617 (quoting Viener, 834 A.2d at 546) (reaffirming that "[an expert's] assumptions must be based upon such facts as the jury would be warranted in finding from the evidence."
¶ 18 The foregoing discrepancies in Dr. Ziv's testimony are significant, and in our opinion, undermine the evidentiary competence of her related conclusions. Given the omission from Dr. Ziv's testimony and report of substantial elements of proof that the Rules of Evidence would require even of expert testimony in civil litigation, we do not find sufficient competent evidence to sustain the trial court's SVP determination.*fn8 Although we recognize that the determination of evidentiary weight is reserved for the factfinder, (the trial judge, in the case of SVP assessments), see Meals, 912 A.2d at 220, evidence not properly substantiated may not be considered, see Pa.R.E. 703, and therefore is not subject to a weight determination, see Helpin, 969 A.2d at 617. We conclude accordingly that the Commonwealth has, likewise, failed to meet its burden of proof that Fuentes is likely to engage in future predatory sexually violent offenses. See generally, Commonwealth v. Lipphardt, 841 A.2d 551, 554 (Pa. Super. 2004) (providing, "the SVP classification does not automatically apply to an individual convicted of a sexual offense"). Consequently, we reverse the trial court's designation of Fuentes as a Sexually Violent Predator and discharge all requirements attendant to that designation.
¶ 19 Judgment of sentence REVERSED as to Sexually Violent Predator determination.*fn9 Jurisdiction RELINQUISHED.
¶ 20 Judge Lally-Green files a dissenting opinion.
DISSENTING OPINION BY LALLY-GREEN, J.
¶ 1 While the majority sets forth a persuasive rationale in support of its result, I must respectfully dissent. As the majority correctly notes, we are not to reweigh evidence in reviewing the trial court's SVP determination. Commonwealth v. Meals, 912 A.2d 213, 223 (Pa. 2006) ("The task of the Superior Court is one of review, and not of weighing and assessing the evidence in the first instance."). Despite this, the bulk of the majority's analysis concerns the weight of the expert's testimony. I do not believe the majority's concerns provide sufficient basis to overturn the trial court's SVP determination. Appellant's criminal history includes robbery, theft, and assault, and the instant case involves his sexual assault of a mentally- disabled 16-year-old girl. Appellant's criminal history and the instant facts provide, in my view, sufficient competent evidence in support of the expert's conclusion that Appellant exhibits antisocial behavior and deviant sexual interest. The expert's testimony makes clear that, according to the pertinent literature, antisocial behavior and deviant sexual interest evince a strong likelihood of recidivism.
¶ 2 In light of the foregoing, I would affirm the judgment of sentence.
Accordingly, I respectfully dissent.