*1 I the order of the Common- reverse Accordingly, would Appellant’s for a recalculation of and remand wealth Court factor in the apportion- the inclusion of payroll taxes with ment formula.
890A.2d 372 Pennsylvania, Appellee COMMONWEALTH Harry DENGLER, Appellant.
Supreme Pennsylvania. Court of
Argued May 30, 2005. Decided Dec. *2 Trivellini, Jeanne Mertz, Andrea E. Welsh, Glenn D. Read- ing, for Harry Dengler, appellant. Packel, Greenlee,
John Ellen T. Baker, Karl Philadelphia, for Defender Ass’n of Philadelphia, appellant amicus curiae. Baldwin,
Mark Carlyle Reading, Hobart, Alisa Rebecca PA, Com. of appellee. CAPPY, C.J.,
Before: CASTILLE, NIGRO, NEWMAN, SAYLOR, BAER, EAKIN and JJ.
OPINION Justice CASTILLE. appeal
This
poses a discrete evidentiary
issue
first im-
pression arising out of the operation of Megan’s Law II:1
10, 2000,
May
(as amended),
1. Act of
§
P.L.
No. 18
42 Pa.C.S.
e( seq.
at a
testimony
witness
opinion
whether
sexually
if
is a
an offender
hearing to determine
(“SVP”),
subject to the registration
and is therefore
predator
II,
subject to
Megan’s
provisions
notification
Law
admissibility
scientific
Pennsylvania test of
novel
States,
(D.C.Cir.
Frye v. United
On niece, R.K. The child twelve-year-old was home with watching movie when bedroom appellant’s He and locked the door behind him. sat entered the room her pants of time and then removed period with R.K. for a child, however, underwear, The over the' child’s resistance. to remove her shirt attempt successfully appellant’s resisted fondled and kissed R.K.’s breasts Appellant and brassiere. *3 finger in vagina, her inserted clothing, her fondled over on her. The assault was vagina, performed and oral sex her the child’s mother knocked the interrupted only when fled, leaving the door and Appellant opened door. bedroom bed, from the waist the on the naked down. child pursuant negotiated plea to Appellant pleaded guilty assault, aggravated to one each of indecent count agreement Id. 3125(a)(7), corruption § of minors. 18 Pa.C.S. 6301(a). directed the § Thomas J. Eshelman The Honorable Board”) (“the Board to Sexual Assessment State Offenders Megan’s under Law perform an SVP assessment the and notification By registration way background, II. II to “offenders” Megan’s apply qualifying provisions Law statute, an of- Under the “sexually predators.” violent is to predicate required crime qualifying fender convicted Police; the State where offense Pennsylvania the register with here, assault, subject indecent as the offender is aggravated 9795.1(b). § The statute to lifetime Pa.C.S. registration. for an sentencing but before also directs after conviction the trial court subject registration requirement, to the offense to determine by to order assessment Board required an § if offender should be classified as an Id. SVP. 9795.4. issues, After the report upon praecipe by filed Com- monwealth, the court then must schedule a to hearing deter- mine SVP status. At the both the hearing, accused and the Commonwealth the right have to be heard and call and witnesses, ci'oss-examine including expert witnesses. The court, Commonwealth has the burden by proving evidence, clear and convincing that the an defendant is SVP. adjudicated Id. Those the court as are SVPs measures; additional for example, things, other among statute directs notify neighbors, the State Police to as well as care centers day and school within municipality, officials the SVP’s presence community. §§ Id. 9797-98.2
The Act a “sexually defines predator,” violent in relevant as part, person who has sexually been convicted of a “[a] violent offense as set forth section (relating 9795.3 registration) and who is determined to a sexually be violent assessments) predator (relating section 9795.4 due to a mental abnormality or personality disorder makes the person likely to engage predatory sexually offenses.” §Id. 9792. The “predatory” Act defines act “[a]n directed at a stranger person or at a a relationship whom has been initiated, established, promoted, maintained or or in whole part, order to facilitate or support victimization.” Id. Board, Section 9795.4 directs that the in order to facilitate assessments, SVP “establish standards for evaluations and for evaluators conducting 9795.4(b). § assessments.” Id. The Section provides further that:
An include, assessment shall to, but not be limited examination of following:
(1) offense, Facts the current including:
(i) Whether the offense multiple involved victims. (ii) Whether individual exceeded the means necessary to achieve the offense.
(iii) The nature of the sexual contact with the victim. 2004, In Assembly the General provi- added an additional notification sion, governing information to be made available on the Internet concerning § offenders SVPs. Pa.C.S. 9798.1.
(iv) the victim. of the individual Relationship (v) of the victim. Age of unusual display included a
(vi) the offense Whether commission of during the the individual cruelty by crime.
(vii) of the victim. capacity mental The (2) history, including: Prior offense record.
(i) criminal prior The individual’s sen- any prior (ii) completed the individual Whether tences. pro- in available
(iii) participated the individual Whether offenders. for sexual grams individual, including: (8) Characteristics (i) the individual. Age of
(ii) the individual. illegal drugs by Use of illness, or mental abnor- (iii) disability mental Any mental mality. indi- to the
(iv) that contribute characteristics Behavioral conduct. vidual’s
(4) a sexual offender assess-, supported Factors that are the risk reasonably related to as criteria
ment field reoffense. 9795.4(b).3
§Id. order, the Board issued written to the court’s response by Board Member Vero- prepared Evaluation Sex Offender Valliere, a doctoral psychologist licensed N. nique which concluded that psychology, in clinical degree In her SVP. criteria for classification met the had Investigator that a Board Dr. noted report, Valliere assess- purposes to interview attempted noted the The also ment, report to cooperate. but he declined evaluation, rendering her Dr. had consulted sources Valliere compliance appeal concerning the court's this 3. There is no issue on II, any challenge Megan’s Law nor procedural requirements with the a fuller discussion requirements' of the law. For to the substantive II, generally Megan’s Commonwealth Law see operation (2003). Williams, nn. 8-12 965-68 & Pa. 832 A.2d *5 affidavit, records, probable included court cause which relating court records to sexual offenses prior appellant two one upon guilty plea committed minors: of which resulted a statutory rape thirteen-year-old girl; to the 1991 of a and the which, arising in February involving second of a fifteen-year-old was matter at the time girl, open instant The offense. records also revealed that had a injury past, suffered head that he had engaged other criminal behavior not involving (multiple sexual assault thefts, falsification, influence), driving unsworn that he a history drug had and alcohol abuse. Sex Offender Evaluation, 1-4; 7/18/02, N.T. 71-74.4
In stressed, alia, her analysis, written Dr. Valliere inter a repeat had history sexually assaulting females; young teen or pre-teen that his descriptions offenses an “engrained” revealed “fantasy life” which he believed the “comfing] him, victims were strongly to pre- seductive, senting in a way” themselves aggressive and “keep more;” coming back for and that he appeared have no control over himself when presented an opportunity offend, electing to do so in high-risk he situations where likely to caught, be revealed high motivation to offend. Dr. Valliere set then forth her diagnosis as follows:
[Appellant] meets the criteria classification as a sexually predator. [Appellant] driven repeatedly sexual- ly young girls assault due his them, sexual arousal to potentially exacerbated by organic contributors to his be- havior. [Appellant] already has pattern formed a of assaul- tive behavior to young girls. He has three [sic] documented fact, victims. [appellant] is so motivate[d] assault children, he his assaulted last victim soon after his arrest for his second victim. Even facing incarceration did not prevent him offending. from
[Appellant] has traits of impulsivity, poor judgment, lack of and a empathy, disregard for the consequences Evaluation, 4. The written Sex Offender which was into admitted evi- SVP/sentencing hearing, dence at the is attached to the end transcript paginated consecutively hearing and is to the notes. and defi- history He of criminal behavior has behavior. likely diagnos- meets system. [Appellant] of the legal ance otherwise Personality Disorder NOS [not tic criteria *6 However, history of head given his serious specified]. Personality diagnosis may he meet criteria injuries, source, injury. Regardless to a head Change due likelihood a condition that contributes has [appellant] sexually he offend. that will diagnostic as He meets has other factors well. [Appellant] he indicate that abuse. Records Polysubstance criteria for marijuana drugs. as well as other alcohol and has abused common in offenders. abuse/dependence is sexual Substance to lower an Alcohol, agent, serves pharmacological offense, as does committing conflict offender’s about offending It or does marijuana. is not a cause sex Instead, it offend- helps sexual arousal children. cause more urges they may act that resist offending ers on sober, increasing recidivism risks substan- effectively when problem treatment for his tially. [Appellant] sought has treatment he has had using has he succeeded nor has refused sexual offender sober. [Appellant] remain treatment. as a of sexual offenses as well past history has
[Appellant] pa- criminal He has numerous past history of behavior. unmanageable and has been role/probation violations a pattern, offense behaviors show [Appellant’s] supervision. arous- fantasy. [Appellant] and demonstrates in both action victims. There is no evidence young pre-teen al to teen offenses. cruelty [appellant’s] of unusual 7/18/02, 5-6; original). 75-76 On (emphasis Id. at N.T. disorder or mental abnormal- personality question that deviant Dr. then noted “shows ity, Valliere abnormality a mental that contributes arousal and sexual reoffending;” predatory issue of behav- his likelihood ior, “creates and relation- promotes she noted that taking solely gratification, his victims for his sexual ships 6; highly way.” in a Id. advantage opportunity predatory 7/18/02, N.T. 18, 2002, July Megan’s
On the court held a Law sentenc- II/ ing hearing at Dr. Dr. Valliere noted Valliere testified. in addition to her involving academic studies sexual offenders, had she conducted both and risk psychological on both outpatient assessments incarcerated and sex offend- ers, evaluation, assessments which therapy, testing included therapy. Dr. group Valliere noted that she had been a 1997; member the Sex Offender since Assessment Board that she had both received and in risk provided training offenders; assessment of sexual she had conducted over assessments; 200 sexual offender she had testified as qualified question on the of SVP status over court Dr. proceedings. Valliere indicated her familiarity with issue, the statutory standard at noted she had undergone “hundreds of hours of training understanding sex dynamics, arousal, offenders’ deviate sexual sexual offense *7 behavior, assessment, analysis, crime risk reading as well all and of self-study body research related N.T. [sic].” 7/18/02, 3-9. Appellant general conceded Dr. Valliere’s qualifications, but challenged whether her that opinion appel- an lant was was SVP admissible test. appellant’s Over objection, Dr. Valliere testified at some consistently length, with her report, written that appellant statutory met the criteria an classification as SVP. She noted, other among things, that appellant significant had a and ie., deviant sexual response arousal to young girls, that a in common thread appellant’s description own the three separate sexual offenses he had committed his was view that the children “highly seductive,” were very “coming sexually him,” aggressive to and that he them. In the simply obliged view, doctor’s “this is more than just your or typical denial victim that blaming we see with offenders. This kind of disclosure fantasy reflects their world.... their fantasy, [I]n it, the children it, irresistible; want demand that they’re so and this the experience.” disclosure, enhances Such in Dr. view, Valliere’s high shows “a degree psychological invest- ment in gratification, the sexual that goes speaking and which is the deviance towards abnormality the mental
toward Id. girls.” at 10-17. young assessing risk to appellant’s
Dr. Valliere added behavior is that reoffend, deviance his significant the other resistance, risk in com- nor the involved neither the victim’s or as a crimes, his arousal” acted mitting his “decreased assault.” deterrent, spoke sexually to “his drive all which assessing appellant’s significant, also it The doctor deemed reoffend, “opportunis- that he and his risk to was “impulses” highly are this sexual offenders who tic:” “what we see with that speak, their so pump primed, that opportunistic they happen that if do fantasy driven ready are so they it and choose to they know how use upon opportunity Turning question Id. 17-18. it very quickly.” use Dr. Valliere “predatory,” was appellant’s whether behavior others, considerations, among sug- following opined fact ap- an affirmative answer: gested the fact gratification; own sexual his victims his proached victims, a “pattern thus showing he had multiple revealed behavior;” prior history, his criminal repeated supervision” probation as he violated “maladjustment to Id. at 21-22. abuse. polysubstance parole; consider- Dr. Valliere at Appellant’s counsel cross-examined terms first the fact that the eliciting able length, (such as “mental abnormali- SVP status assessing involved diagnostic are not terms “sexually or ty” predator”) psychiatry psychology. fields of employed commonly noted, however, is a “commonly that “predator” Dr. Valliere it even if a distinct phrase” accepted psychological *8 Moreover, asked Id. at when whether diagnosis. psy- methodology professional a test or within there was allow for psychiatric or communities which would chological status, there “is a body the doctor noted that SVP determining of recidivism. of risk assessment and risk of research terms characteristics, patterns there are behavioral There are there some at.” whether pressed that we look When determination, making SVP diagnostic criteria specific to assess such typically lines the criteria used along disorders, things as personality Dr. Valliere noted that the statute itself set forth governing doctor criteria. The then added, “there is body research lays that out different legislature criteria which the expressly incorporated into law, like multiple victims, disorder; personality are and these all supported by literature.” Id. at 32-33. The doctor also her noted that task in forming as to judgment SVP status did not simple because, involve a clinical or judgment opinion statute, under the “I can’t say just it’s purely my based opinion judgment. There things are are that outside my use, research, that I judgment namely, behavior, also his records, his his past previous diagnoses, things those that are just my judgment. about Pm the one that adds all those things up criteria, do say they meet this but it’s not judgment or simply my opinion.” Id. at 35.
Appellant then from methodology turned to Dr. Valliere’s itself, SVP assessment questioning validity any predic- reoffend, tion that appellant would particularly given the time elapse would before he would be released from prison, the potential rehabilitative effect of incarceration and sex offender treatment, and the fact that the doctor did not have the benefit of an appellant. interview with In response, Dr. Valliere noted “[predictions of likelihood are notoriously unreliable. Assessment of likelihood is more reliable.... And I think has a [appellant] behavioral pattern deviant sexual arousal, personality traits that make him act likely to out on again behavior some time.” Id. at 40. The doctor stressed the SVP assessment does not a predic- involve tion of recidivism but an assessment of given risk certain factors to sex relevant offenders. The doctor described the task as follows: deviance,
You’re to see if going they have the personality traits, basic ... sex offender symptoms, speak, so make them that this likely going isn’t disappear them. Deviate arousal doesn’t disappear in people. Personality disorders don’t disappear people. And when they’re combined to exhibit behavior, themselves sexual criminal things these don’t disappear. we And don’t know how *9 know how to cure arousal. We don’t deviate sexual cure terms we look for in So that’s what disorders. personality behavior existed, predatory motivated they now they of They’re disappear to tomorrow. They’re going [sic]. mean, says a term that likely legal to likely motivate —I like—is he different they this in the are past, this did person out this behavior acting in terms of from or you I[sie] is, pattern on his all he based behavioral future? And past. things described his at Id. testimony, the trial court of Dr.
At the conclusion Valliere’s The court then proceeded that an SVP. appellant found to term of imprisonment sentencing and sentenced indecent years aggravated one-half to ten two and years probation corrup- assault, by to be followed five that, his apprised upon was also Appellant tion of minors. comply regis- from he would have to with prison, release II. filed motion Appellant Megan’s Law provisions tration sentence, denied. which the trial court modify Court, appellant argued, inter Superior On appeal alia, admitting Dr. the trial court erred Valliere’s criteria for statutory met the testimony expert testimony subjecting without first as an SVP classification admissibility. Appellant claimed hearing a Frye standard, Valliere’s was inad- Dr. subjec- evidence because she made scientific expert missible pre- using statutory (“sexually terms tive assessment abnormality”) generally accepted “mental dator” having clinically no community relevant scientific panel The meaning psychology. the field significant unanimous, published opin- in a rejected argument appellant’s ion, psychological psychiatric of a finding that the is not scientific offered novel expert proceeding SVP enactment subject because evidence making to consider in the factors for the itself provides further that Dr. The noted panel determination. SVP were not created testified that those factors had Valliere body but rather reflected a Assembly arbitrarily, the General psychological literature and on the research sexual and their risk of The court predators recidivism. agreed defy logic the trial court that it to ask an would *10 expert apply Megan’s conducting to Law II in an witness expert’s then testimony merely assessment and exclude II employed Megan’s language because she Law her assess- ment. the court Finally, methodologies concluded specifically, used Dr. her review of appellant’s Valliere— history, offense as as her reliance on prior psychological well her experience evaluating literature and research and own sexual v. Den- predators novel. Commonwealth —were 843 A.2d gler, (Pa.Super.2004). 1241 granted
This discretionary Court further review to consider impression involving this first issue and to provide guidance further on the question when scientific evidence may properly be deemed as excludable new or novel. general rule, As a this Court’s standard of of a trial review court’s a evidentiary ruling, whether including ruling scientific evidence admissible against Frye challenge, is limited determining to whether the trial court abused its Inc., Grady 546, discretion. v. Pa. Frito-Lay, 576 839 A.2d 1038, (2003); 376, 758, 1046 Zieber Bogert, 565 Pa. 773 A.2d (2001) Minerd, n. 3 (citing 760 Commonwealth v. 562 Pa. (2000)). 753 225 A.2d “An abuse of discretion not be may merely found an appellate because court might have reached a conclusion, different requires but result of manifest unrea sonableness, or bias, partiality, prejudice, ill-will, or or such lack support so to be clearly Grady, erroneous.” Inc., A.2d 1046 (citing Constr., Paden v. Baker Concrete (1995)). Pa. 658 A.2d Appellant Dr. argues that Valliere’s should be preliminary assessment because it involves novel science. Specifically, appellant asserts that reliance on assembled records any personal without assessment of the offender is unusual and not psychological psychi- standard or Further, practice. atric Megan’s the fact that the II Law hearing occurs prior sentencing, when offender’s release unknown, date is makes the assessment inherently unreliable. claims that because corollary point, As a this do not occur until requirements notification reporting and release, prediction regarding any after offender’s questionable. Appellant likelihood of reoffense is remote and this predictions Dr. also points Valliere’s therefore, reasons notoriously area are unreliable and any accuracy appel-’ whether predict doctor could rehabilitative effect sexual offend- lant reoffend or what would while he is incarcerated. might er treatment have Dr. language also takes issue with Appellant He complains in her assessment. Valliere used abnormality” “sexually violent preda- “mental concepts in the diagnoses psychological tor” not generally accepted are typical per- Because there no psychiatric communities. SVP, may an individual be sonality profile that indicates Diagnostic cannot look appellant argues, an assessor *11 Disorders, Mental 4th Edition Manual of Statistical (DSM-IV) objective scientific to find an any or other source that Valliere’s Finally, argues list Dr. appellant of indicators. he a does not necessar- diagnosis personality that has disorder in the ily appellant cannot control behavior imply future. cannot be responds appellant
The Commonwealth that Dr. Valliere relied on records without complain heard conducting evaluation of him because personal a If, claims, the to meet with her. method- refused not generally accepted Dr. this case is ology Valliere used personal to the lack of a inter- community the relevant due outcome of view, then would be able control the an offender the or an interview to process by granting refusing the SVP the that this is not what argues assessor. The Commonwealth II. Assembly enacting Megan’s General intended when Law type of this of evidence general admissibility As for the an offender meets the criteria concerning whether SVP, argues the for classification as an Commonwealth by Assembly the affirmed the relevant construct General research into the psychological literature and incorporating Moreover, testimony, Dr. Valliere’s the Com- echoing statute. monwealth that the
whether a test was being truthful in changes based pressure, blood was admissible against a criminal defendant. In rejecting evidence, the opined the court to be admissi- ble, the evidence must be sufficiently established accepted in the scientific relevant community:
Just when a scientific principle or discovery the line crosses experimental between the and demonstrable stages diffi- cult to in define. Somewhere this twilight zone the eviden- tial of force the principle recognized, must be and while 68 long way admitting in go will
courts or dis- principle well-recognized scientific deduced from is made must be the from which deduction covery, thing the in general acceptance gained to have sufficiently established belongs. in it the field which particular core of what forth the passage F. 1014. This sets 293 Frye, “Frye as the test.” come to be known has voice spectrographic this considered In Court Topa, where evidence, the Frye standard we described identification print depends evidence “Admissibility [scientific] as follows: by its those scientists validity of general acceptance the upon Id. belongs.” at 1281. evidence field to which active scientific evidence was inadmissi- proffered finding by forth the rationale set quoted Topa, ble Court States the District of United of Columbia Appeals Court (D.C.Cir.1974): Addison, 741, 498 F.2d v. in the acceptance scientific general requirement
“The qualified to assess the that those most community assures method will have determi- validity of a scientific general protects prosecu- test Additionally, voice. native reserve of assuring that a minimal by and defense alike tion of a critically validity examine the exists can experts who in a case. Since scientific particular scientific determination mystic posture instances assume may some proof ability to jury infallibility eyes laymen, in the of a the me- conversant with experts, equally rebuttal produce technique, may prove particular methods of a chanics and be essential.” at 1282.
Topa, 369 A.2d ap- this manner of followed consistently has This Court evidence confronted with novel scientific when proach Frye. adoption since our See Commonwealth three decades (1981) Nazarovitch, (process 496 Pa. 436 A.2d v. yet accepted); Com- refreshing hypnosis recollection (1992) (“Sex- Dunkle, A.2d 830 529 Pa. monwealth v. admissible); Child evidence not ually Syndrome” Abused (electro- (1992) Zook, 1 A.2d 532 Pa. Commonwealth
69
admissible);
test of dried blood
phoresis
stains deemed
Com
Crews,
(certain
508,
(1994)
v.
monwealth
536 Pa.
The question before this today Court whether the evidence at issue in this ease—the of Dr. Valliere the statutory met criteria classification as an SVP—is scientific evidence which is to the evidentiary screening function served the Frye test. This Court has made it clear is not implicated every time science courtroom; rather, comes into the it applies only to proffered expert testimony involving novel science. Commonwealth v. (2004) Delbridge, 580 Pa. 859 A.2d (plurality opinion) 1044). (citing Pa.R.E. 702 and Grady, 839 A.2d at What constitutes novel scientific evidence has historically been basis, decided on a case-by-case and there is some fluidity indeed, the analysis; science deemed at the novel outset may novelty lose its and become generally accepted the scientific We parties note that both the Grady the amicus indicated a Daubert, preference retaining Frye over and thus this Court was presented advocacy favoring with no Daubert. date, community strength proponent’s a later or the affect the determination. proffer may sought introduce Grady, plaintiff *14 to break “Doritos” concerning required the force downward Doritos remain as the conclusion that chips expert’s as well to be sharp being too after chewed swallowed too hard and by used methodology the This Court held while safely. have been may to calculate the force expert the downward his methodolo- accepted community, in the scientific generally the as a means reach accepted gy generally was not too sharp an item remains hard and swallow conclusion that this Court found being Accordingly, after chewed. safely its in the ruling not abuse discretion the trial court did 839 A.2d at scientific conclusion inadmissible. 1047. Blum, methodology by the used the In this Court found “flawed,” the be and “unreliable” under plaintiffs expert to test, proffered thus concluded that the evidence was Frye and the permitted The trial court Blum had inadmissible. drug that the Bendec- introduce plaintiffs tin, her ingested pregnant, Blum had while caused Mrs. conclusion, plaintiffs In the reaching birth defects. son’s conducted oth- by used studies expert apparently portions studies, ers, in those working through backwards the data and the by the to reach conclusions not reached recalculated data n. at 4 5. This Court determined original studies. 764 A.2d & as fairly cannot be described expert’s “procedure thus Frye generally accepted methodology” purposes, holding that the trial court Superior we affirmed Court’s deeming had erred in the evidence admissible.6 inadmissible, explic- deeming the Blum did 6. scientific evidence analyze itly of discretion standard later made the case under abuse (now Justice) Grady. Cappy and this Justice Mr. Justice Chief clear Blum; dissenting opinions separate both dissents would authored Frye one reaffirmed the test. It should be noted that have dissenting Frye test opinions was that the concerns shared Blum grounds expert’s testimony that his expanded be to exclude an on (as generally accept- methodology) opposed to his were not conclusions community. this The dissents’ view on ed in relevant scientific n. point accepted Grady. See at 1045 & was later 839 A.2d discrete mind, With these authorities we find no abuse discre- part tion of the trial in entertaining court the testimony of Dr. Valliere without first it subjecting analysis. primarily This so because arewe satisfied that Dr. Valliere’s did not involve science be properly which could deemed novel under This case Frye. pose does not the classic scenario. The has not come into Commonwealth court penological, and offered psychological psychiatric literature research, examples laws, or the of other states with SVP court, then matter, asked the adjudi- a common law cate SVP status and to some of consequence devise sort Rather, (and attending designation. the “science” here designation consequences to, SVP it triggers) responsive of, indeed it is a byproduct direct a specific legislatively- adopted scheme which sets forth the relevance and contours challenged evidence. The General has deter- Assembly *15 a mined that sexual offender’s status significant SVP is to the operation registration and notification provisions of the The Assembly law. has defined the triggering term (“sexually violent predator”) and has set forth the factors to be consid- in ered making that determination. This scheme a represents legislative policy judgment concerning response to proper certain sexual offenders. The question SVP status is thus statutory not question, question “pure and, science” in least absence of challenge to the propriety of the statute, substance of the the question of evidentiary relevance framed the very provisions itself, of the statute not some external source.
Because this case legislative involves a construct and anot law, matter of common simply misses the mark in Dr. criticizing testimony Valliere’s on grounds that it does square with prevailing standards and in methodology psychological psychiatric diagnostic communities. The require statute does not proof of a standard of diagnosis is commonly found accepted a mental diagnos- health and/or testified, tic paradigm. As Dr. Valliere the opinion she ren- ders in a sex offender assessment is not strictly diagnostic the psychological sense; rather, her opinion must account for behavior, his research, past his factors, as such “the
statutory opinion affect the records, all diagnoses,” previous statutory SVP question and renders on the then forms she certain sexual society seeking against to protect status. adopt a offenders, Assembly obliged the General construct, that was and it is the construct diagnostic certain analysis of control this Court’s actually adopted which must to prove evidence offered admissibility of the relevance and statutory standard. abnor- takes issue—“mental The with which terms in detail defined “sexually predator” mality” and —are art. II, making them terms of See essentially Megan’s Law above, Also, noted our General § 9792. have 42 Pa.C.S. we for an list of factors an exhaustive promulgated Assembly an making to consider SVP as Dr. Valliere such assessor legislature provided § Because Id. 9795.4. assessment. SVP, offender is an assessing whether an the framework definition, framework, by testimony tracking community of in the accepted deemed generally should be The assessments. conduct SVP professionals who conducting psychologist psychiatrist of a credentialed for an formula which follows SVP assessment “novel science” therefore cannot be deemed assessment Frye hearing necessary. no report corroborates of Dr.
A review Valliere’s and ascertainable. here is discreet legislative that the standard reviewed documents she The doctor testified regularly that are relied were “records assessing appellant at 13. As a kind of evaluation.” N.T. in this upon 7/18/02 *16 documents, included docu- her of the result of review prior and appellant’s to the current offense ments related a has offenses, appellant personali- Dr. concluded that Valliere history that his abnormality or disorder mental ty has a deviant sexual abusing “suggests that he young girls in criminally resulted females which has young arousal toward that appel- Dr. Valliere found sexually aggressive behavior.” the fact sexually assault as demonstrated driven to lant was being caught fear least one did not appear that he —at assault was committed while family a member of victim home, was one shortly committed assault being after arrested another. She described as fantasy driven because of at least version two assaults, the victim initiated the sexual Based upon contact. her education investigation, experience, and work Dr. Valliere opined then that appellant met the criteria for classification as an SVP. Since Dr. findings Valliere’s follow the factors set 9795.4, §in forth there no novel requiring screening science pursuant Frye to the test. support further of our holding that this evidence not
subject to screening Frye, jurisdic- under we note that other held, tions have analysis, under traditional Frye Frye does not apply expert psychological psychiatric testimo- ny regarding sexual offender’s likelihood recidivism be- cause such evidence is not novel. The Superior Court made specific note of the particularly instructive Florida District Court Appeals Florida, decision v. Westerheide 767 So.2d 637 (Fla.Dist.Ct.App.2000), approved on other questions, 831 (Fla.2002), So.2d where that court held that expert testimo- inny aid of if determining an offender is an under SVP Florida version of Megan’s subject Law is not to Frye. In Westerheide, the offender subject to commitment as an and, part SVP of the commitment process, he was assessed if determine he anwas SVP. The offender challenged the trial court’s admission of expert testimony that he was likely reoffend, arguing that the evidence was to exclusion Frye. rejected The court argument, stating: jurisdictions
Courts in other that have specifically addressed application of Frye analysis to expert testimony cases involving sexually predator substantially acts similar to Florida’s Act have held that not apply. does For Ward, example, People Cal.App.4th 83 Cal. Rptr.2d (1999), the court held that specifically does apply to a “psychiatrist’s prediction dangerous- future ness or diagnosis of mental illness” and concluded that “the trial court did abuse its discretion when it admitted *17 74 the likelihood defendant
expert
testimony regarding
to
Id. at
likely
an
reoffend.”
831-32.
SVP and
here, however, maintains that
the lower
The appellant
predi
admitting
testimony
erred in
because
expert
court
of
capable
not
that the experts
established
were
cate was
would reoffend.
accurately predicting
whether
psychologists
of
from
expert
The admission
danger
future
purpose
predicting
psychiatrists
by
nothing
mental illness or abnormalities is
ousness caused
psychiatry
or novel to the law. The sciences
new
integral part
jurispru
been an
of American
psychology have
although
type
expert
its
this
inception
dence since
to
precision,
is not
mathematical
we
amenable
sufficiently
are
predictions
dangerousness
find that
of future
are
alone in
and reliable to be admissible. We
accurate
jurisdictions
this decision.
other
have reached
Courts
involving
in cases
application
same conclusion
similar to the Florida Act that commit violent
schemes
control, care,
re
and treatment. See In
predators
sexual
341,
139
Westerheide, at 657. 767 So.2d jurisdictions other cites number of cases from
Appellant
an
which,
argues,
expert
testimony regarding
he
hold that
subject
Frye
to the
test.
offender’s likelihood
reoffend
cases, however,
no basis for this Court
provide
Those
scheme.
legislative
such a restriction
this
More-
impose
upon
over,
cited
whose
every
case
involves
upon
SVP assessment was based
actuarial tests used
deter-
Dr.
did not use
mine the risk of
Because
Valliere
recidivism.7
Florida,
(actuarial
(Fla.Dist.Ct.App.2003)
Collier
Justice NIGRO not did of participate the decision this case.
Justice BAER files a concurring opinion. BAER,
Justice concurring. I agree with the Majority the testimony adduced in this case does derive from a novel or theoretical methodological States, foundation Frye under v. United 293 F. (D.C.Cir.1923), 1013 See, and our decisions e.g., thereunder. Inc., v. Grady 546, 576 Frito-Lay, 1038, Pa. 839 A.2d 1045 (2003). Thus, the trial court did not abuse its discretion in admitting the evidence. I Accordingly, agree with the Majori- ty’s however, conclusion. I write separately, because I cannot aspects subscribe to those of the Majority Opinion that sug- gest that a statute forth setting factors to gird particular scientific inquiry itself relieves a court from conducting independent analysis under of Frye novelty given theory method used to address those factors. notes,
As the Majority Addison, United States v. 498 (D.C.Cir.1974), F.2d 741 the United States Court Appeals for the District of Columbia Circuit observed “[t]he requirement general acceptance the scientific community assures that those most qualified to general assess the validity of a scientific method will have the determinative voice.” Id. 744-45; at Maj. Op. 68, see Pa. 586 at 890 A.2d 381. In Addison, the court appeals observed that test protects the “essential” ability the opponent challenged produce “to rebuttal experts, equally conversant 949, Traynoff, re Detention of Ill.App.3d 338 273 Ill.Dec. 789 (2003) (actuarial
N.E.2d
predict
865
tools used to
likelihood of reof
standard).
must meet
fense
76
technique”
of a particular
and methods
mechanics
deployed course, methodologies, of truly novel theories or derived from aim, find a opponent may as the this insofar against militates proffer. meet such a experts prepared dearth of available it not novel conclusions that have held that we Accordingly, F'l’ye, only but conclusions based scrutiny are A.2d at Grady, 839 methodologies. theories or See upon novel must prove (clarifying proponent while community of in the relevant scientific acceptance general used, prove “that need also proponent methodology the ex- generally accepted also community has the scientific Blasioli, conclusion”); see also Commonwealth pert’s (1998) (“This generally Court has A.2d Pa. technique underlying novel theory both required accepted.”) be generally must scientific evidence *19 Megan’s of the the inquiry as conclusive sanctifying In Sexually an offender is a assessing whether criteria for Law 9795.4(b), (SVP), Majori- § see 42 Pa.C.S. Violent Predator Majority The ruling requires. far more than its ty proves not in the relevant “determinative voice” finds Addison’s legislature. Majority The community but in the scientific writes: not a a construct and legislative this case involves
Because law, mark in misses the appellant simply matter of common it grounds that does Dr. Valliere’s criticizing methodology standards and prevailing not square diagnostic communities. psychiatric psychological proof diagno- not standard require The statute does in a mental is found commonly accepted sis that and/or testified, the Dr. Valliere diagnostic As paradigm. health sex offender assessment is she renders opinion sense; rather, her diagnostic psychological in the strictly factors, as “the such must account opinion behavior, records, research, past previous diag- his his noses,” she then forms opinion all of which affect seek- statutory question on the SVP status. renders offenders, sexual society certain ing protect against Assembly General obliged adopt diag- certain construct, nostic and it is the actually construct that was adopted which must control this analysis Court’s relevance and admissibility offered evidence prove statutory standard.
Maj. 71-72, Op. Pa. at 890 A.2d Majority at The concludes, vein, in a similar the legislature “[b]ecause provided the framework for assessing whether an offender is SVP, an framework, tracking defini- tion, should be generally deemed in the accepted community of professionals who conduct SVP assessments.” Id. at added); A.2d at 383 (emphasis see at also id. A.2d (“Since at 384 expert’s] findings [the follow the factors set 9795.4, §in forth there no novel requiring screening science test.”). pursuant to the Frye
Regardless of whether the expert
opinion called
the statute is “not
strictly diagnostic
psychological
sense,”
it
his or her singularly scientific expertise that
qualifies a witness to furnish such an assessment. Whatever
diagnostic
non-diagnostic
forth,
construct
legislature
set
nothing
denies
statute
the trial court its traditional
prerogative to determine the
legitimacy
the science under-
lying testimony proffered of a
support
statutory assess-
ment.
Insofar as
this determination falls under Pa.R.E.
is,
instance,
in the first
aspect
inquiry,
notwithstanding
basis or contour of the statutory factors.
Grady, 839
A.2d
1045 (holding that “the Frye requirement
is one of several criteria” that must be satisfied under Rule
*20
702).1 That
legislature
standard,
the
institutes a governing
whether diagnostic or statutory, offers no assurance that there
be
will
of
body
experts equipped
testify
to
under the
legislative standard from the same theoretical or methodologi-
has,
Although
1.
past,
this Court
Frye
the
deferred
the
context to
legislative
evincing given
standards as
scientific method's non-novel-
McGinnis,
ty,
520,
generally
see
Commonwealth v.
Pa.
Because
believe
without
can be reached
concerning novelty
inquiry
predicate
of the General Assem
to
to the enactments
resort
deference
in the relevant
peculiar
no
collectively
expertise
has
bly, which
long-standing
not reach so far. Courts’
I would
disciplines,
testi
psychological
psychiatric
reliance on
and undisputed
that the standard
beyond
illustrates
cavil
and evidence3
mony
are
practices
perva
those
employed
theories and methods
courts.4
to
or the
practitioners
but novel
anything
sive and
not to the
goes
essence
distilled
its
challenge
The instant
to the
legitimacy
methods but
novelty
expert’s
conclusions,
admissibility
not to
goes
in turn
expert’s
enshrining
passed
phrenology as
legislature,
example,
an act
If
2.
assessment,
might
discipline
such assessments
suited to an SVP
best
indefinitely
practitioners.
Were the Com-
grind
for want
to a halt
pseudo-science
expert in that archaic
monwealth then to locate one
cases,
likely
be
testify
defendants
would
hard-
its behalf in all such
phrenol-
in the
and methods of
pressed
find witnesses versed
theories
might
ogy
Commonwealth’s evidence. That
statute
to rebut the
litigants
free
or
standard does not
itself
require
such a
adherence
regarding
either
problems
Addison
from the
identified
courts
testimony.
ability to furnish rebuttal
side's
Philadelphia observes that
Association of
3. Amicus Curiae Defender
with-
are conducted
trained counselors
SVP assessments sometimes
psychology
psychiatry. Brief
disciplines
or
in the
out credentials
prevalence
or
of this
15-16
n. 7. The instance
Curiae at
&
Amicus
materially
my position on this issue.
practice
affect
does
880, 896,
3383,
Estelle,
See, e.g.,
103 S.Ct.
463 U.S.
Barefoot
("The
(1983)
suggestion
psychiatrist’s
that no
L.Ed.2d 1090
respect
dangerousness
presented
to a defendant’s future
may be
wheel.”);
asking
103 S.Ct.
like
us to disinvent the
id.
somewhat
("Whether
dangerous
mentally
to either
ill
individual
therapy turns on the
and is in need of confined
himself or others
interpreted by expert psychiatrists
meaning
the facts which must be
Thorell,
79 See, Thorell, but In weight. e.g., to re 149 Wash.2d 72 (2003). P.3d case, expert
The of the Commonwealth’s in this whole, as clearly taken indicates that methodology she in her employed reaching conclusions was consistent generally accepted practices in clinical psychology, practices long-since courts have are sufficiently determined valid to course, lead to admissible Of and evidence. where or suspect novel conclusions are from ac- generally reached cepted postulates, may there ample impeach be room expert testimony question. only Because Frye applies conclusions; noted, the principles underlying the such inquiries go admissibility but to It weight. appears that but, in this case extensively was cross-examined factfinder, of the unavailingly. view It place our reach the factfinder’s determinations of weight credibility an absent abuse of discretion. sum, I believe theory methodology underlying
the SVP assessment pursuant conducted to statute in this non-novel, is wholly case5 its notwithstanding demonstrable and predictive flaws limitations. The same methods and techniques many have for years been held admissible related contexts here and elsewhere. Because trial court’s determination to that effect in the instant case does not discretion, amount to an abuse of I would affirm. According- ly, I respectfully offer Concurring Opinion.6 this
Justice NIGRO did not participate the decision of this case. Although
5. we need not reinvent the party wheel each time a raises a Frye challenge previously to the sort of approved scientific method binding appellate ruling, court trial courts still should evaluate each challenge putative novelty theory methodology based underlying Indeed, proffered expert testimony. evidence or over- arching my source of prospect concerns articulated herein is the might Majority analysis per courts deem the preclusion reflect a se analysis novelty any first proffered instance of methodolo- gy in the context SVP assessments. recognize Majority I Opinion pays lip that the more than service to propositions See, Concurring those my Opinion. e.g., Maj. that animate A.2d SIENKIEWICZ, Jr., Montage
Richard t/d/b/a *22 Appellee
Mini-Mart, Inc.,
Pennsylvania, DEPARTMENT
COMMONWEALTH
TRANSPORTATION, Appellant.
OF
Pennsylvania.
Supreme
Court
April
Argued
2005.
Dec.
2005.
Decided
(finding
"primarily
A.2d
no abuse
discretion
Op. at
testimony did not
that Dr. Valliere's
is satisfied
[the Court]
because
").
properly
could
be deemed novel
involve
science
interpre-
analysis
several
Majority's
as amenable of
I view the
Because
tations, however,
just
aspects
respectfully disagree with
those
I
foregoing
with the
discussion.
Majority's analysis that are inconsistent
notes
factors listed
the statute for
assessor
arbitrarily,
to consider were
created
rather
but
are the
of
incorporation
result of the
this psychological litera-
Thus,
Commonwealth,
ture and research.
the
according to
validity
process
already
SVP assessment
has
been
Further,
by
determined
the statute.
legislative
use
“sexually
predator”
terms
abnormality”
and “mental
given
are
appropriate
purpose of the assessment. The
Commonwealth notes that the
for the
task
assessor
trial court is
a diagnostic
one for treatment purposes;
instead, these are
terms
legal
drawn from the
language
II,
Megan’s
designed
Law
to provide a basis to determine
protections
when the
SVP
triggered.
law should be
Rule 702 of the Pennsylvania Rules of Evidence addresses
general
admissibility
expert
testimony where scientific
evidence is at issue:
Rule 702. Testimony by experts
scientific,
If
technical or other specialized
beyond
knowledge
that possessed by layperson
will assist the trier
of fact
understand
evidence
issue,
or
determine a fact in
qualified
witness
as an expert
knowledge, skill, experi-
ence,
training
education may
thereto in
testify
the form
of an opinion or otherwise.
Pa.R.E.
test,
702. This Court has noted that the Frye
adopted
Pennsylvania
Topa,
Commonwealth v.
(1977),
Pa.