SVP hearing in Pennsylvania

2025Thus, “these facts or data consulted need not - 31 - be admissible for the expert’s opinion to be admitted.” Id. at 778, 781. (citation omitted, emphasis added) (holding that “the facts presented at an SVP hearing” were not considered inadmissible hearsay as they were “not being offered for the truth of the matter, as would be the case in a true hearsay scenario[, but instead] constitute[d] information, gleaned from the 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 Rule

2025Thus, “these facts or data consulted need not - 31 - be admissible for the expert’s opinion to be admitted.” Id. at 778, 781. (citation omitted, emphasis added) (holding that “the facts presented at an SVP hearing” were not considered inadmissible hearsay as they were “not being offered for the truth of the matter, as would be the case in a true hearsay scenario[, but instead] constitute[d] information, gleaned from the 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 Rule

2023Commonwealth 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”).

2023Commonwealth 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”).

2023A defendant may be determined to be an SVP if she has been convicted of a sexually violent offense and, following an assessment by an SOAB evaluator, the Commonwealth proves by clear and convincing evidence at an SVP hearing that the defendant suffers from a mental abnormality or personality disorder that makes her likely to engage in predatory sexually violent offenses. 42 Pa.C.S. §§ 9799.12, 9799.24; Commonwealth v. Hollingshead, 111 A.3d 186, 189 (Pa. Super. 2015).

2023A defendant may be determined to be an SVP if she has been convicted of a sexually violent offense and, following an assessment by an SOAB evaluator, the Commonwealth proves by clear and convincing evidence at an SVP hearing that the defendant suffers from a mental abnormality or personality disorder that makes her likely to engage in predatory sexually violent offenses. 42 Pa.C.S. §§ 9799.12, 9799.24; Commonwealth v. Hollingshead, 111 A.3d 186, 189 (Pa. Super. 2015).

2025Id.; see also Commonwealth v. Prendes, 97 A.3d 337, 360 (Pa. Super. 2014).

2025Id.; see also Commonwealth v. Prendes, 97 A.3d 337, 360 (Pa. Super. 2014).

2017However, this Court subsequently held, en banc, that “a challenge to the classification of the defendant as a SVP is not a challenge to the conviction or sentence.” Commonwealth v. Masker, 34 A.3d 841, 843-844 (Pa. Super. 2011) (en banc).

2016Com. v. Masker, 34 A.3d 841 (Pa.. ~. .,Super. r-:, . . 2011), app. denied, 47 A.3d 846 (Pa . 2012) (no meaningful difference between a challenge to the determination that appellant is a SVP and a challenge to the process by which that determination was reached).

2023Cf. Commonwealth v. Whanger, 30 A.3d 1212, 1214 (Pa. Super. 2011) (finding a defendant waived his claim that the language of a former SVP statute prohibited a post-sentence SVP hearing). -5- to prove by clear and convincing evidence that the defendant is an SVP.

2016The concurring opinion in Whanger outlined the issue we encounter herein: "[T]he question remains whether a similarly situated defendant who has other issues unrelated to his SVP status should await his post-sentence SVP hearing before filing his direct appeal." Whanger, 30 A.3d at 1219, n. 3 (Bowes, J., concurring).

2025On November 16, 2017, the trial court entered an order delaying the SVP hearing due to the then-controlling Superior Court decision in Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017) (Butler I), which found SORNA’s SVP framework unconstitutional.5 Following the Pennsylvania Supreme Court’s decision in Commonwealth v. Butler, 226 A.3d 972 (Pa. 2020) (Butler II), which reversed Butler I, the trial court scheduled Johnson’s SVP determination hearing for December 4, 2020 — more than four years after his sentencing.

2025On November 16, 2017, the trial court entered an order delaying the SVP hearing due to the then-controlling Superior Court decision in Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017) (Butler I), which found SORNA’s SVP framework unconstitutional.5 Following the Pennsylvania Supreme Court’s decision in Commonwealth v. Butler, 226 A.3d 972 (Pa. 2020) (Butler II), which reversed Butler I, the trial court scheduled Johnson’s SVP determination hearing for December 4, 2020 — more than four years after his sentencing.

2025See Commonwealth v. Curnutte, 871 A.2d 839, 843 (Pa. Super. 2005) (holding that an indigent defendant is entitled to an expert assessment other than that conducted by the SOAB, and the appointment of an expert witnesses at an SVP hearing).

2025See Commonwealth v. Curnutte, 871 A.2d 839, 843 (Pa. Super. 2005) (holding that an indigent defendant is entitled to an expert assessment other than that conducted by the SOAB, and the appointment of an expert witnesses at an SVP hearing).

2024Commonwealth v. Moore, 307 A.3d 95 , 99 n.1 (Pa. Super. 2023); Commonwealth v. Schrader, 141 A.3d 558, 561-63 (Pa. Super. 2016).

2022We observed that the appeal presented the question of whether the defendant “who has other issues unrelated to his SVP status should await his post-sentence SVP hearing before filing his direct appeal.” Id., 141 A.3d at 561 .

2016See also Commonwealth v. Price, 876 A.2d 988, 994 (Pa. Super. 2005) (holding that a challenge to the sufficiency of the evidence to support an SVP classification was not cognizable under the PCRA.) Thus, the common pleas did not abuse its discretion in declining to grant Appellant relief under the PCRA. -4- J-S17021-16 Additionally, we note that Appellant’s claims regarding the SVP hearing process are not cognizable outside of the PCRA framework as petitions for state habeas corpus relief.

2016See also Commonwealth v. Price, 876 A.2d 988, 994 (Pa. Super. 2005) (holding that a challenge to the sufficiency of the evidence to support an SVP classification was not cognizable under the PCRA.) Thus, the common pleas did not abuse its discretion in declining to grant Appellant relief under the PCRA. -4- J-S17021-16 Additionally, we note that Appellant’s claims regarding the SVP hearing process are not cognizable outside of the PCRA framework as petitions for state habeas corpus relief.

2023Finally, to the extent Appellant’s interpretation of the SVP statute is inconsistent with this Court’s precedent, Appellant requests that we revisit our prior decisions and adopt the three-part SVP test rejected by this Court in Commonwealth v. Dixon, 907 A.2d 533 (Pa. Super. 2006).

2023Finally, to the extent Appellant’s interpretation of the SVP statute is inconsistent with this Court’s precedent, Appellant requests that we revisit our prior decisions and adopt the three-part SVP test rejected by this Court in Commonwealth v. Dixon, 907 A.2d 533 (Pa. Super. 2006).

2006Howe, supra. Here, Appellant did file a written motion for extraordinary relief prior to both the SVP hearing and sentencing.

2006Howe, supra. Here, Appellant did file a written motion for extraordinary relief prior to both the SVP hearing and sentencing.

2025See id. at 20-21.3 This Court has found that a challenge to the weight of the evidence to sustain an SVP determination is waived where the appellant does not “advance[] the issue in the court below, thereby affording the trial court the opportunity to rule on it.” Commonwealth v. Ratushny, 17 A.3d 1269, 1272 (Pa. Super. 2011).

2015Ratushny, 17 A.3d 1269, 1271-1272 (Pa. Super. 2011) (holding that the appellant waived his challenge to the weight of the evidence presented at his SVP hearing because he had not raised the issue in the trial court).

2023An “SVP determination is done by the sentencing court in what is typically considered a ‘sentencing/SVP hearing’ at which time the court receives evidence on the SVP issue, including a report and testimony from [a] ____________________________________________ 2 See Pa.R.A.P. 126(b) (unpublished non-precedential decisions of the Superior Court filed after May 1, 2019, may be cited for their persuasive value). -5- representative [from the Sexual Offender's Assessment Board].” Id. at 1201 .

2023An “SVP determination is done by the sentencing court in what is typically considered a ‘sentencing/SVP hearing’ at which time the court receives evidence on the SVP issue, including a report and testimony from [a] ____________________________________________ 2 See Pa.R.A.P. 126(b) (unpublished non-precedential decisions of the Superior Court filed after May 1, 2019, may be cited for their persuasive value). -5- representative [from the Sexual Offender's Assessment Board].” Id. at 1201 .

2022As we repeatedly have made clear, “the risk of re-offending is merely a factor to be considered in making an SVP determination, and not an independent element.” Stephens, supra at 1039 ; see Commonwealth v. Dixon, 907 A.2d 533, 537, 539 (Pa. Super. 2006) (explaining that “every Commonwealth expert who testifies that an individual is an SVP must examine, and render an opinion on, whether the individual is likely to re- offend. [However], the precise manner of meeting this burden is not analyzed in terms of a strict, three-prong test” because neither this Court nor our Supreme Court “has set out

2022As we repeatedly have made clear, “the risk of re-offending is merely a factor to be considered in making an SVP determination, and not an independent element.” Stephens, supra at 1039 ; see Commonwealth v. Dixon, 907 A.2d 533, 537, 539 (Pa. Super. 2006) (explaining that “every Commonwealth expert who testifies that an individual is an SVP must examine, and render an opinion on, whether the individual is likely to re- offend. [However], the precise manner of meeting this burden is not analyzed in terms of a strict, three-prong test” because neither this Court nor our Supreme Court “has set out

2016See Commonwealth v. Meals, 912 A.2d 213, 224 (Pa. 2006).

2016Commonwealth v. Meals, 912 A.2d 213, 218 (Pa.2006).

2024See id.; see also Commonwealth v. Baird, 856 A.2d 114, 118 (Pa. Super. 2004) (stating that “the district attorney decides whether to file a praecipe for a hearing whereby the court will determine if an offender meets the SVP criteria….”). 6 In other words, an SVP hearing does not automatically occur after receipt of the SOAB report, … but, rather, the district attorney decides whether to pursue the SVP classification by filing, or not filing, a praecipe for an SVP hearing.

2024See id.; see also Commonwealth v. Baird, 856 A.2d 114, 118 (Pa. Super. 2004) (stating that “the district attorney decides whether to file a praecipe for a hearing whereby the court will determine if an offender meets the SVP criteria….”). 6 In other words, an SVP hearing does not automatically occur after receipt of the SOAB report, … but, rather, the district attorney decides whether to pursue the SVP classification by filing, or not filing, a praecipe for an SVP hearing.

2009As illustrated in our recent opinion in Commonwealth v. Feucht, 955 A.2d 377 (Pa.Super.2008), the Megan’s Law SVP determination is done by the sentencing court in what is typically considered a “sentencing/SVP hearing” at which time the court receives evidence on the SVP issue, including a report and testimony from an SOAB representative.

2009As illustrated in our recent opinion in Commonwealth v. Feucht, 955 A.2d 377 (Pa.Super.2008), the Megan’s Law SVP determination is done by the sentencing court in what is typically considered a “sentencing/SVP hearing” at which time the court receives evidence on the SVP issue, including a report and testimony from an SOAB representative.

2023See 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] . . ..”). - 22 - J-E02003-22 Aumick did not retain a defense expert or present any evidence at the SVP hearing.

2023See 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] . . ..”). - 22 - J-E02003-22 Aumick did not retain a defense expert or present any evidence at the SVP hearing.

2022As we repeatedly have made clear, “the risk of re-offending is merely a factor to be considered in making an SVP determination, and not an independent element.” Stephens, supra at 1039 ; see Commonwealth v. Dixon, 907 A.2d 533, 537, 539 (Pa. Super. 2006) (explaining that “every Commonwealth expert who testifies that an individual is an SVP must examine, and render an opinion on, whether the individual is likely to re- offend. [However], the precise manner of meeting this burden is not analyzed in terms of a strict, three-prong test” because neither this Court nor our Supreme Court “has set out

2022As we repeatedly have made clear, “the risk of re-offending is merely a factor to be considered in making an SVP determination, and not an independent element.” Stephens, supra at 1039 ; see Commonwealth v. Dixon, 907 A.2d 533, 537, 539 (Pa. Super. 2006) (explaining that “every Commonwealth expert who testifies that an individual is an SVP must examine, and render an opinion on, whether the individual is likely to re- offend. [However], the precise manner of meeting this burden is not analyzed in terms of a strict, three-prong test” because neither this Court nor our Supreme Court “has set out

2020See Commonwealth v. P.L.S., 894 A.2d 120, 132 (Pa. Super. 2006) (holding issues related to SVP hearing not raised at the hearing or a post-sentence motion are waived); see also Pa.R.A.P. 302(a). - 10 - determination of exactly what promises constitute the plea bargain must be based upon the totality of the surrounding circumstances and involves a case-by-case adjudication.

2011Commonwealth v. P.L.S., 894 A.2d 120, 132 (Pa.Super.2006), appeal denied, 588 Pa. 780 , 906 A.2d 542 (2006).

2019See Fernandez, supra; Farabaugh, supra. - 11 - The written plea colloquy contains no provision regarding sex offender registration and SVP classification, but the oral colloquy does contain an open discussion of a pending SOAB evaluation, Megan’s Law, and the SVP hearing, which the court deferred to a later date.

2019See Fernandez, supra; Farabaugh, supra. - 11 - The written plea colloquy contains no provision regarding sex offender registration and SVP classification, but the oral colloquy does contain an open discussion of a pending SOAB evaluation, Megan’s Law, and the SVP hearing, which the court deferred to a later date.

2024Id.

2005Although our appellate courts have not ruled on whether such evidence may be relied upon by an expert in an SVP hearing, in a concurring opinion in the case of Commonwealth v. Krouse, 799 A.2d 835 (Pa. Super. 2002), Superior Court Judge Bowes addressed the same issue we address here.

2026“Further, this Court emphasized that a trial court, in conducting an SVP hearing, is not responsible for evaluating the veracity of the facts underlying the expert’s testimony.” Moore, 307 A.3d at 102 (internal quotation marks and citation omitted).

2026“Further, this Court emphasized that a trial court, in conducting an SVP hearing, is not responsible for evaluating the veracity of the facts underlying the expert’s testimony.” Moore, 307 A.3d at 102 (internal quotation marks and citation omitted).

2024Meals, Moorehart, Brooks, supra. Appellant offered no evidence or testimony during the SVP hearing.

2024Meals, Moorehart, Brooks, supra. Appellant offered no evidence or testimony during the SVP hearing.