Com. v. Adams-Smith, R. , 209 A.3d 1011 ( 2019 )

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2019 PA Super 151COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RASHEED ADAMS-SMITH :
:
Appellant : No. 4080 EDA 2017
Appeal from the PCRA Order November 20, 2017
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0003263-2013
BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
OPINION BY GANTMAN, P.J.E.: FILED MAY 07, 2019
Appellant, Rasheed Adams-Smith, appeals from the order entered in the
Montgomery County Court of Common Pleas, which denied his first petition
brought pursuant to the Post-Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A.
§§ 9541-9546. We affirm in part, vacate in part, and remand with
instructions.
The trial court and this Court set forth the relevant facts and previous
procedural history of this case as follows.
On April [4], 2014, following trial before the [trial court] and
a jury, [Appellant]–then represented by William E. Moore,
Esquire–was convicted of rape of a child under the age of
thirteen, involuntary deviate sexual intercourse [(“IDSI”)]
with a child under the age of thirteen, indecent assault of a
child under the age of thirteen, and indecent exposure.
At trial, the Commonwealth presented evidence that
[Appellant]−a close friend of the victim’s family−began
improperly touching the victim (A.G.) at a time when A.G.
was approximately five (5) years old and [Appellant] was a
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teenager.5 This improper contact continued over a period
of years, beginning with repeated touching by [Appellant] of
A.G.’s bare buttocks and ultimately escalating to, inter alia,
[Appellant] exposing himself and masturbating to
ejaculation in front of A.G. and repeatedly penetrating A.G.’s
anus with [Appellant’s] penis. A.G. testified that these anal
penetrations occurred “too many times to count.”
5 At the time of trial, A.G. was ten (10) years old and
[Appellant] was twenty (20).
[Appellant] was charged with and convicted of crimes he
committed after his eighteenth birthday, specifically the
period between July 2011 and September 2012. Evidence
of [Appellant’s] earlier improper conduct with [Victim] was
admitted─upon the Commonwealth’s motion─solely to
provide the jurors with the complete background and history
of the case.
On August 1, 2014, [Appellant] appeared before the [trial
court] for a hearing to determine whether [Appellant] would
be classified as a sexually violent predator [(“SVP”)].
Following hearing, the [trial court] accepted the
recommendation of the Pennsylvania Sexual Offenders
Assessment Board and determined that [Appellant] was, in
fact, [an SVP].
The case then proceeded immediately to sentencing.
Following hearing, the [trial court] imposed a standard
range sentence of not less than ten (10) nor more than
twenty (20) years[’] imprisonment on [Appellant’s]
conviction for rape of a child. The [trial court] imposed a
consecutive standard range sentence of not less than ten
(10) and not more than twenty (20) years[’] imprisonment
on [Appellant’s] conviction for [IDSI] with a child. The [trial
court] further imposed a concurrent sentence of not less
than one (1) nor more than two (2) years[’] imprisonment
on [Appellant’s] conviction for indecent assault, and a
sentence of two (2) years[’] probation on his conviction for
indecent exposure.
[Appellant] thus received an aggregate sentence of not less
than twenty (20) nor more than forty (40) years[’]
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imprisonment, with the [trial court] explaining the reasons
for the sentences imposed at some length on the record.
Commonwealth v. Adams-Smith, No. 85 EDA 2015, 2015 WL 7571762,
unpublished memorandum at 2-3 (Pa.Super. filed November 24, 2015)
(quoting Trial Court Opinion, filed March 12, 2015, at 1-2) (internal citations
to record and some footnotes omitted). Additionally at sentencing, the court
notified Appellant of his requirement to register and report for life as a Tier III
sexual offender and SVP under the Sexual Offender Registration and
Notification Act (“SORNA”). Appellant timely filed a notice of appeal on
January 5, 2015. This Court affirmed the judgment of sentence on November
24, 2015. See id. Appellant did not file a petition for allowance of appeal
with our Supreme Court, so the judgment of sentence became final on or
about December 24, 2015.
Appellant timely filed pro se his first PCRA petition on November 18,
2016.
[The PCRA] court granted [Appellant’s] request for court-
appointed PCRA counsel by order dated May 1, 2017, and
filed of record on May 2, 2017, after an evidentiary hearing
regarding [Appellant’s] indigency. Court-appointed PCRA
counsel filed a “Petition for Permission to Withdraw as
Counsel” on July 7, 2017, to which he attached a “no-merit”
letter [pursuant to Commonwealth v. Turner, 518 Pa.
491, 544 A.2d 927 (1988) and Commonwealth v. Finley,
550 A.2d 213 (Pa.Super. 1988) (en banc)] dated July 5,
2017. [Appellant] responded by filing a pro se document
entitled “Petitioner’s Response to Finley Letter” on July 20,
2017.
On October 23, 2017, [the PCRA] court filed of record its
“Notice of Intention to Dismiss,” which also granted court-
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appointed counsel’s request for permission to withdraw.
That notice was based upon [Appellant’s] pro se PCRA
petition, court-appointed PCRA counsel’s “no-merit” letter,
[Appellant’s] pro se response thereto, and [the PCRA]
court’s independent review of the record and legal research.
On November 13, 2017, [Appellant] acting pro se filed
“Petitioner’s Response to Notice of Intent to Dismiss.”
Review and consideration of [Appellant’s] response failed to
persuade [the PCRA] court that [Appellant] was entitled to
a hearing on his PCRA petition or entitled to any form of
PCRA relief. Accordingly, [the PCRA] court by order entered
November 22, 2017, dismissed [Appellant’s] “Petition for
Post-Conviction Relief (PCRA)” filed November 18, 2016,
without [a] hearing.
[Appellant] filed a notice of appeal on December 18, 2017.
[The PCRA] court directed [Appellant] to file a concise
statement of errors complained of on appeal by order dated
and entered [December 21, 2017]. [Appellant] complied by
filing his concise statement on January 5, 2018.
(PCRA Court Opinion, filed February 21, 2018, at 2).
Appellant raises the following issues for our review:
1. WHETHER THE PCRA COURT ERRED AS A MATTER OF
LAW, WHEN IT DISMISSED THE PCRA PETITION WITHOUT
A HEARING[?]
2. WHETHER APPELLANT IS ENTITLED TO A NEW TRIAL OR
DISMISSAL OF THE CHARGES WHERE TRIAL COUNSEL WAS
INEFFECTIVE FOR FAILING TO PRESENT ANY COUNTER
ARGUMENTS PRIOR TO OR DURING, OR FAILING TO
OBJECT TO THE COMMONWEALTH’S INTRODUCTION AT
TRIAL OF PRIOR BAD ACTS[?]
3. WHETHER APPELLANT IS ENTITLED TO A NEW TRIAL OR
DISMISSAL OF THE CHARGES WHERE TRIAL COUNSEL WAS
INEFFECTIVE FOR FAILING TO PURSUE [A] PRETRIAL
INTERVIEW TO EXPLORE TAINT OF MINOR VICTIM IN
ACCORDANCE WITH 42 PA.C.S.A. § 5985.1 & PA.R.E.
601[?]
4. WHETHER APPELLANT IS ENTITLED TO A NEW TRIAL OR
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DISMISSAL OF CHARGES WHERE, TRIAL COUNSEL WAS
INEFFECTIVE IN FAILING TO CONDUCT A PROPER CROSS-
EXAMINATION OF COMMONWEALTH WITNESS DR.
SCRIBANO & MOVE TO STRIKE HIS TESTIMONY AS NON-
RELEVANT PURSUANT TO [PENNSYLVANIA RULES OF
EVIDENCE?]
5. APPELLANT IS ENTITLED TO A NEW TRIAL OR DISMISSAL
OF THE CHARGES DUE TO THE CUMULATIVE NATURE OF
THE ERRORS IN THIS CASE[?]
(Appellant’s Brief at 2).
Preliminarily, we observe that appellate briefs must conform in all
material respects to the briefing requirements set forth in the Pennsylvania
Rules of Appellate Procedure. Pa.R.A.P. 2101. See also Pa.R.A.P. 2114-2119
(addressing specific requirements of each subsection of brief on appeal).
Regarding the argument section of an appellate brief, Rule 2119(a) provides:
Rule 2119. Argument
(a) General rule.—The argument shall be divided into
as many parts as there are questions to be argued; and shall
have at the head of each part—in distinctive type or in type
distinctively displayed—the particular point treated therein,
followed by such discussion and citation of authorities as are
deemed pertinent.
Pa.R.A.P. 2119(a). “[I]t is an appellant’s duty to present arguments that are
sufficiently developed for our review. The brief must support the claims with
pertinent discussion, with references to the record and with citations to legal
authorities.” Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa.Super.
2007), appeal denied, 596 Pa. 703, 940 A.2d 362 (2008) (internal citations
omitted). “This Court will not act as counsel and will not develop arguments
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on behalf of an appellant.” Id. If a deficient brief hinders this Court’s ability
to address any issue on review, we shall consider the issue waived.
Commonwealth v. Gould, 912 A.2d 869, 873 (Pa.Super. 2006) (holding
appellant waived issue on appeal where he failed to support claim with
relevant citations to case law and record). See also In re R.D., 44 A.3d 657(Pa.Super. 2012), appeal denied, 618 Pa. 677, 56 A.3d 398 (2012) (holding
appellant waived issue, where argument portion of appellant’s brief lacked
meaningful discussion of, or citation to, relevant legal authority regarding
issue generally or specifically; appellant’s lack of analysis precluded
meaningful appellate review).
Instantly, Appellant did not properly develop his argument section for
his fourth appellate issue, concerning the Commonwealth’s expert witness,
Dr. Scribano. Appellant notes several reasons why he thinks Dr. Scribano was
an unreliable witness, but Appellant does not discuss how this relates to
ineffective assistance of counsel or cite to relevant law. See Pa.R.A.P.
2119(a). We decline to make Appellant’s argument for him. See Hardy,
supra. Accordingly, Appellant waived his fourth appellate issue regarding Dr.
Scribano’s testimony. See In re R.D., supra; Gould, supra.In his remaining issues combined, Appellant announces the PCRA court
improperly relied on counsel’s Turner/Finley no-merit letter when the court
dismissed his PCRA petition without an evidentiary hearing. Appellant
contends trial counsel was ineffective for failing to object at trial to evidence
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of prior bad acts, specifically related to Appellant’s acts of abuse of Victim,
which occurred before Appellant’s eighteenth birthday. Appellant further
contends appellate counsel was ineffective for not preserving the prior-bad-
acts claim on direct appeal.
Appellant also avers trial counsel was ineffective because counsel did
not request a competency hearing regarding Victim, where Victim’s testimony
may have been tainted during an interview with a social worker. Appellant
claims the many instances of ineffective assistance of counsel amount to
cumulative error. Appellant concludes this Court should dismiss his
convictions or order a new trial. We disagree.
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s determination
and whether its decision is free of legal error. Commonwealth v. Conway,
14 A.3d 101, 109 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795(2011). This Court grants great deference to the findings of the PCRA court if
the record contains any support for those findings. Commonwealth v. Boyd,
923 A.2d 513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d
74 (2007). We give no such deference, however, to the court’s legal
conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super.
2012). Further, a petitioner is not entitled to a PCRA hearing as a matter of
right; the PCRA court can decline to hold a hearing if there is no genuine issue
concerning any material fact, the petitioner is not entitled to PCRA relief, and
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no purpose would be served by any further proceedings. Commonwealth v.
Wah, 42 A.3d 335, 338 (Pa.Super. 2012); Pa.R.Crim.P. 907.
The law presumes counsel has rendered effective assistance.
Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). Under the
traditional analysis, to prevail on a claim of ineffective assistance of counsel,
a petitioner bears the burden to prove his claims by a preponderance of the
evidence. Commonwealth v. Turetsky, 925 A.2d 876 (Pa.Super. 2007),
appeal denied, 596 Pa. 707, 940 A.2d 365 (2007). The petitioner must
demonstrate: (1) the underlying claim is of arguable merit; (2) counsel had
no reasonable strategic basis for the asserted action or inaction; and (3) but
for the errors and omissions of counsel, there is a reasonable probability that
the outcome of the proceedings would have been different. Id. See also
Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999). “A
reasonable probability is a probability that is sufficient to undermine
confidence in the outcome of the proceeding.” Commonwealth v. Spotz,
624 Pa. 4, 34, 84 A.3d 294, 312 (2014) (quoting Commonwealth v. Ali, 608
Pa. 71, 86-87, 10 A.3d 282, 291 (2010)). “Where it is clear that a petitioner
has failed to meet any of the three, distinct prongs of the…test, the claim may
be disposed of on that basis alone, without a determination of whether the
other two prongs have been met.” Commonwealth v. Steele, 599 Pa. 341,
360, 961 A.2d 786, 797 (2008).
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“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit….” Commonwealth
v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot be
found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).
Once this threshold is met we apply the ‘reasonable basis’
test to determine whether counsel’s chosen course was
designed to effectuate his client’s interests. If we conclude
that the particular course chosen by counsel had some
reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective.
Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).
Prejudice is established when [a defendant] demonstrates
that counsel’s chosen course of action had an adverse effect
on the outcome of the proceedings. The defendant must
show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome. In [Kimball, supra], we held that a “criminal
defendant alleging prejudice must show that counsel’s
errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.”
Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002)
(some internal citations and quotation marks omitted).
“Where matters of strategy and tactics are concerned, counsel’s
assistance is deemed constitutionally effective if he chose a particular course
that had some reasonable basis designed to effectuate his client’s interests.”
Commonwealth v. Sneed, 616 Pa. 1, 19, 45 A.3d 1096, 1107 (2012).
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A finding that a chosen strategy lacked a reasonable basis
is not warranted unless it can be concluded that an
alternative not chosen offered a potential for success
substantially greater than the course actually pursued. A
claim of ineffectiveness generally cannot succeed through
comparing, in hindsight, the trial strategy employed with
alternatives not pursued.
Id. at 19-20, 45 A.3d at 1107 (internal citations and quotation marks
omitted). Numerous claims of ineffective assistance of counsel will not
cumulatively warrant relief if the claims fail individually. Commonwealth v.
Koehler, 614 Pa. 159, 36 A.3d 121 (2012). See also Commonwealth v.
Washington, 592 Pa. 698, 927 A.2d 586 (2007) (stating claim of cumulative
error fails if individual claims do not warrant relief).
Generally, character evidence is not admissible to prove conduct.
Pa.R.E. 404(b).
Rule 404. Character evidence not admissible to prove
conduct; exceptions; other crimes
* * *
(b) Other crimes, wrongs, or acts.
(1) Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show action in conformity therewith.
(2) Evidence of other crimes, wrongs, or acts may be
admitted for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity
or absence of mistake or accident.
(3) Evidence of other crimes, wrongs, or acts proffered
under subsection (b)(2) of this rule may be admitted in a
criminal case only upon a showing that the probative value
of the evidence outweighs its potential for prejudice.
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Pa.R.E. 404(b)(1)-(b)(3). There are limited exceptions to the admission at
trial of evidence of other crimes or prior bad acts. Id.; Commonwealth v.
Young, 989 A.2d 920, 924 (Pa.Super. 2010).
One such exception arises in the prosecution of sexual
offenses. Evidence of prior sexual relations between
defendant and his…victim is admissible to show a passion or
propensity for illicit sexual relations with the victim. This
exception is limited, however. The evidence is admissible
only when the prior act involves the same victim and the
two acts are sufficiently connected to suggest a continuing
course of conduct. The admissibility of the evidence is not
affected by the fact that the prior incidents occurred outside
of the statute of limitations.
Id. (emphasis in original). Evidence that provides the factfinder with the res
gestae, or complete history, of a crime holds special significance.
Commonwealth v. Wattley, 880 A.2d 682, 687 (Pa.Super. 2005), appeal
dismissed, 592 Pa. 304, 924 A.2d 1203 (2007).
[T]he trial court is not…required to sanitize the trial to
eliminate all unpleasant facts from…consideration
where those facts are relevant to the issues at hand
and form part of the history and natural development
of the events and offenses for which the defendant is
charged.
Res gestae evidence is of particular import and significance
in trials involving sexual assault. By their very nature,
sexual assault cases have a pronounced dearth of
independent eyewitnesses, and there is rarely any
accompanying physical evidence…. [In these] cases the
credibility of the complaining witness is always an issue.
Id. (emphasis in original) (internal citations and quotation marks omitted).
“The general rule in Pennsylvania is that every person is presumed
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competent to be a witness.” Commonwealth v. Delbridge, 578 Pa. 641,
663, 855 A.2d 27, 39 (2003). “A decision on the necessity of a competency
hearing is addressed to the discretion of the trial court.” Id.A competency hearing concerns itself with the minimal
capacity of the witness to communicate, to observe an event
and accurately recall that observation, and to understand
the necessity to speak the truth. A competency hearing is
not concerned with credibility. Credibility involves an
assessment of whether…what the witness says is true; this
is a question for the fact finder. An allegation that the [child
witness’] memory of the event has been tainted raises a red
flag regarding competency, not credibility. Where it can be
demonstrated that a [witness’] memory has been affected
so that their recall of events may not be dependable,
Pennsylvania law charges the trial court with the
responsibility to investigate the legitimacy of such an
allegation.
Id. at 663, 855 A.2d at 40 (emphasis added). Furthermore,
In order to trigger an investigation of competency on the
issue of taint, the moving party must show some evidence
of taint. Once some evidence of taint is presented, the
competency hearing must be expanded to explore this
specific question. During the hearing the party alleging taint
bears the burden of production of evidence of taint and the
burden of persuasion to show taint by clear and convincing
evidence. Pennsylvania has always maintained that since
competency is the presumption, the moving party must
carry the burden of overcoming that presumption.
Id. at 664, 855 A.2d at 40.
Instantly, Appellant sexually abused Victim for approximately four
years, beginning when Appellant was fifteen years old. Based on this activity,
the Commonwealth charged Appellant with numerous sexual offenses, which
occurred from July 2011 to September 2012, after Appellant’s eighteenth
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birthday. Before trial, the Commonwealth filed a motion in limine to introduce
evidence of Appellant’s acts of abuse of Victim, which had occurred before
Appellant’s eighteenth birthday. The court granted the motion in limine for
the limited purpose of providing the jury with a complete history of the case.
After the jury convicted Appellant of various sex offenses, the court held a
hearing and imposed SVP status on Appellant. Appellant received an
aggregate term of 20 to 40 years’ imprisonment plus 2 years’ probation along
with notice of his SVP status and SORNA registration and reporting
requirements for life as a Tier III sexual offender.
Here, the court granted in part the Commonwealth’s pretrial motion in
limine and later admitted evidence at trial of Appellant’s prior sexual acts
against Victim. The court allowed this evidence for the limited purpose of
providing the jury with the res gestae or complete history of the case as well
as Appellant’s course of conduct. See Wattley, supra. The evidence was
necessary for the jury to appreciate Appellant’s lengthy period of steady
grooming and escalation of sexual conduct toward Victim and to furnish
context for the charges actually pending against Appellant. Any opposition of
defense counsel would have not merited relief. Therefore, neither trial counsel
nor appellate counsel had reason to pursue this claim. See Poplawski,
supra.With respect to claims of taint regarding Victim’s testimony, Appellant’s
bland assertions, absent specifics, are no more than mere conjecture and
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constitute waiver on appeal. Appellant’s brief fails to support his claims with
pertinent discussion, references to the record, and citations to relevant legal
authorities. See Hardy, supra. Based upon the foregoing, Appellant’s claims
of ineffective assistance of counsel fail individually. Therefore, he cannot
succeed on a claim of cumulative error. See Koehler, supra. As Appellant
was not entitled to relief, based on the issues raised in his PCRA petition, the
court properly issued Rule 907 notice and denied PCRA relief without a
hearing. See Wah, supra. Accordingly, we affirm the PCRA court’s decision
to deny relief on Appellant’s ineffective assistance of counsel claims. See
Conway, supra.Nevertheless, we are mindful of recent case law calling into question the
retroactive application of sex offender registration under SORNA to offenses
committed before the effective date of SORNA. Given the timeliness of
Appellant’s PCRA petition, we elect to review the legality of Appellant’s
sentence on this basis sua sponte. See Commonwealth v. DiMatteo, ___
Pa. ___, 177 A.3d 182 (2018) (reiterating general rule that legality of
sentence can be reviewed in context of timely PCRA petition);
Commonwealth v. Randal, 837 A.2d 1211 (Pa.Super. 2003) (en banc)
(explaining challenges to illegal sentence cannot be waived and may be raised
by this Court sua sponte, assuming jurisdiction is proper; illegal sentence must
be vacated).
The Pennsylvania Supreme Court held that the registration
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requirements under SORNA constitute criminal punishment.
Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017), cert. denied,
___ U.S. ___, 138 S.Ct. 925, 200 L.Ed.2d 213 (2018). The Muniz Court
declared SORNA’s purpose was punitive in effect, notwithstanding the General
Assembly’s intended purpose for the law as a civil remedy. Id. at 748-49,
164 A.3d at 1218.
A criminal statute is ex post facto if it applies to events which occurred
before the law was effective and the law disadvantages the offender. Id. at
710, 164 A.3d 1196. Muniz declared SORNA unconstitutional to the extent it
violates the ex post facto clauses of both the United States and Pennsylvania
Constitutions. Id. at 749, 164 A.3d at 1219. SORNA additionally violates the
ex post facto clause of the Pennsylvania Constitution because it places a
unique burden on the right to reputation and undermines the finality of
sentences by demanding more severe registration requirements. Id. at 756-
57, 164 A.2d at 1223. This Court has since held Muniz created a substantive
rule that retroactively applies in the collateral context. Commonwealth v.
Rivera-Figueroa, 174 A.3d 674, 678 (Pa.Super. 2017).
Instantly, Appellant committed his offenses between July 2011 and
September 2012, before the effective date of SORNA (December 20, 2012).
See 42 Pa.C.S.A. §§ 9799.10, 9799.41. Megan’s Law III applied at that time
and required lifetime registration as a sex offender for Appellant’s sex
offenses. See 42 Pa.C.S.A. § 9795.1(b)(2) (expired December 19, 2012).
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Under SORNA, Appellant’s sex offenses also carry a lifetime registration
requirement but with increased reporting requirements. See 42 Pa.C.S.A. §§
9799.14(d)(2), (4), (8); 9799.15(a)(3), (6). Because Appellant committed
his offenses before the effective date of SORNA, the increased reporting
requirements of SORNA constitute greater punishment for Appellant. See
Muniz, supra. Thus, the imposition of SORNA registration requirements on
Appellant violates the ex post facto clauses of both the United States and
Pennsylvania Constitutions.1 See id.; Rivera-Figueroa, supra.
The Muniz decision that the registration requirements under SORNA
constituted criminal punishment led to a related issue concerning the validity
of the process and imposition of SVP status on a defendant. See
Commonwealth v. Butler, 173 A.3d 1212, 1217 (Pa.Super. 2017), appeal
granted, ___ Pa. ___, 190 A.3d 581 (2018). In Butler, this Court examined
the SVP process and held: “[U]nder Apprendi and Alleyne,[2] a factual
____________________________________________
1 Further, the General Assembly created Subchapter I through Act 10 and
amended in Act 29, in response to Muniz and its progeny. See H.B. 1952,
202 Gen. Assem., Reg. Sess. (Pa. 2018), Act 29 of 2018; H.B. 631, 202 Gen.
Assem., Reg. Sess. (Pa. 2018), Act 10 of 2018. Subchapter I addresses sex
offenders who committed an offense before December 20, 2012. See 42
Pa.C.S.A. §§ 9799.51-9799.75. Additionally, this Court recently held the
effective date of SORNA controls for purposes of this ex post facto analysis.
See Commonwealth v. Wood, ___ A.3d ___, 2019 PA Super 117 (filed April
15, 2019) (en banc); Commonwealth v. Lippincott, ___ A.3d ___, 2019 PA
Super 118 (filed April 15, 2019) (en banc).
2 Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435(2000) and Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186
L.Ed.2d 314 (2013).
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finding, such as whether a defendant has a mental abnormality or personality
disorder that makes him…likely to engage in predatory sexually violent
offenses, that increases the length of registration must be found beyond a
reasonable doubt by the chosen fact-finder.” Id. at 1217 (addressing SVP
status sua sponte as illegal sentence). The Butler Court further held: “Section
9799.24(e)(3) of SORNA violates the federal and state constitutions because
it increases the criminal penalty to which a defendant is exposed without the
chosen fact-finder making the necessary factual findings beyond a reasonable
doubt.” Id. at 1218. See 42 Pa.C.S.A. § 9799.24(e)(3) (stating: “At the
hearing prior to sentencing, the court shall determine whether the
Commonwealth has proved by clear and convincing evidence that the
individual is a sexually violent predator”). The Butler Court concluded that
trial courts can no longer designate convicted defendants as SVPs or hold SVP
hearings, “until [the] General Assembly enacts a constitutional designation
mechanism.” Id. (vacating appellant’s SVP status and remanding to trial court
for sole purpose of issuing appropriate notice under 42 Pa.C.S.A. § 9799.23,
governing reporting requirements for sex offenders, as to appellant’s
registration obligation). In reaching its decision, the Butler Court simply
applied Alleyne and Apprendi to the SVP process, in light of Muniz.
Here, Appellant’s judgment of sentence became final on December 24,
2015, after the United States Supreme Court had decided Alleyne on June
17, 2013. See Pa.R.A.P. 903(a); Alleyne, supra. Applying Alleyne in a new
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context, this Court decided Butler on October 31, 2017, to deem
unconstitutional the current mechanism for imposition of SVP status used in
the present case. See Butler, supra. See also Chaidez v. United States,
568 U.S. 342, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013) (stating case does not
announce new constitutional rule that requires Teague3 retroactivity analysis
when case takes principle that governed prior decisions and applies it to new
facts). Both Muniz and Butler were decided during the pendency of
Appellant’s timely PCRA petition. Under these new cases, Appellant’s SVP
status constitutes an illegal sentence subject to correction. See 42 Pa.C.S.A.
§ 9542 (stating persons serving illegal sentence may obtain collateral relief);
DiMatteo, supra (noting unconstitutionality of Section 7508 in light of
Alleyne and allowing Alleyne relief in PCRA context, so long as judgment of
sentence was not final before Alleyne was decided) (citing
Commonwealth v. Ruiz, 131 A.3d 54 (Pa.Super. 2015) (applying Alleyne
to correct illegal sentence in context of timely-filed PCRA petition)).
To quiet any conflict in the law, we now hold a PCRA petitioner can
obtain relief from an illegal sentence under Butler, if the petition is timely
filed, as long as the relevant judgment of sentence became final after June
17, 2013, the date Alleyne was decided. Because Butler simply applied
Alleyne principles to the SVP process, Butler did not announce a new
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3 Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).
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constitutional rule that required a Teague retroactivity analysis. See
Chaidez, supra. Therefore, the date of the Alleyne decision, not the date
of the Butler decision, controls for purposes of obtaining PCRA relief from the
imposition of SVP status.
Additionally, we hold Appellant is entitled to PCRA relief under Muniz
and Rivera-Figueroa, due to the ex post facto imposition of SORNA
registration requirements which rendered the sentence illegal. Nevertheless,
Appellant is not entitled to any relief on the ineffective assistance of counsel
issues he raised in his timely PCRA petition and on appeal. Accordingly, we
affirm in part but vacate (1) the judgment of sentence, to the extent it requires
registration and reporting requirements under SORNA, and (2) Appellant’s
SVP status; and we remand the case to the trial court to instruct Appellant on
his proper registration and reporting requirements.
Order affirmed in part; SORNA requirements and SVP status vacated;
case remanded with instructions. Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/7/19
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