Com. v. Popovich, T. ( 2021 )

J-S13045-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TALYIA POPOVICH :
:
Appellant : No. 796 MDA 2019
Appeal from the Judgment of Sentence Entered December 10, 2018
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0002098-2018,
CP-40-CR-0002129-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TALYIA POPOVICH :
:
Appellant : No. 933 MDA 2019
Appeal from the Judgment of Sentence Entered December 10, 2018
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0002129-2018
BEFORE: STABILE, J., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: JANUARY 4, 2021
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S13045-20
Talyia Popovich (Popovich) appeals1 from the December 10, 2018
judgments of sentence imposed by the Court of Common Pleas of Luzerne
County (trial court) following her convictions for two counts of indecent
assault.2 Popovich challenges the legality and constitutionality of her
registration requirements pursuant to Revised Subchapter H of the Sexual
Offenders Registration and Notification Act (SORNA II).3 We vacate in part
and remand for further proceedings.
A full recitation of the facts underlying Popovich’s convictions is
unnecessary to our disposition. Briefly, Popovich was charged by criminal
information with one count of indecent assault in each of the above-captioned
cases. Both cases involved the same minor victim. Popovich entered an open
guilty plea in each case, and on December 10, 2018, the trial court sentenced
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1
On June 14, 2019, this court issued a rule to show cause why Popovich’s
appeals should not be quashed in accordance with Commonwealth v.
Walker, 185 A.3d 969 (Pa. 2018), as she had filed identical notices of appeal,
each containing two docket numbers, in the trial court. Popovich filed a
response arguing that while her notices of appeal contained two docket
numbers, they were filed separately with the appropriate trial docket sheet
attached as an exhibit in each case. Each of Popovich’s notices of appeal was
separately time-stamped in the trial court. In Commonwealth v. Johnson,
236 A.3d 1141, 1148 (Pa. Super. 2020) (en banc), we held that the appellant
had complied with Walker by filing separate notices of appeal containing four
docket numbers in each of his four cases on appeal. As this was the case
here, we decline to quash Popovich’s appeals.
2
18 Pa.C.S. § 3126(a)(2).
3
42 Pa.C.S. § 9799.10 et seq.
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her to an aggregate term of 6 to 23 months’ incarceration to be followed by 2
years of probation. In addition, it informed Popovich of her registration
requirements under Revised Subchapter H. Prior to sentencing, Popovich was
evaluated by the Sexual Offenders Assessment Board which determined that
she was not a sexually violent predator. Popovich filed a post-sentence motion
challenging the discretionary aspects of her sentence and the legality and
constitutionality of her registration requirements. The trial court denied the
motion without a hearing and Popovich filed timely notices of appeal. Popovich
and the trial court have complied with Pa. R.A.P. 1925.
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On appeal, Popovich challenges the legality and constitutionality of her
registration requirements under Revised Subchapter H.4, 5
However, while
Popovich’s appeal was pending in this court, our Supreme Court addressed
substantially similar challenges to Revised Subchapter H in Commonwealth
v. Torsilieri, 232 A.3d 567 (Pa. 2020). There, the Court of Common Pleas of
Chester County held that Revised Subchapter H was unconstitutional because
it violated due process with an irrebuttable presumption of sexual offenders’
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4
SORNA I (42 Pa.C.S. §§ 9799.10-9799.42) was enacted on December 20,
2011, and became effective on December 20, 2012, to strengthen the
Commonwealth’s laws regarding registration of sexual offenders and bring
Pennsylvania into compliance with the federal Adam Walsh Child Protection
and Safety Act of 2006, 42 U.S.C. §§ 16901–16945. Section 9799.11(a)(1),
(2) of SORNA I, 42 Pa.C.S. § 9799.11(a)(1), (2) (repealed). In
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), after applying the
factors set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963),
our Supreme Court held that provisions of SORNA I were punitive and that
their retroactive application violates the ex post facto clause of the
Pennsylvania Constitution. See U.S. Const., Art. 1, § 10; Pa. Const., Art. 1,
§ 17.
In response to Muniz, the General Assembly enacted Act 10 of 2018 (SORNA
II). It creates a two-track system: Revised Subchapter H for offenses
committed after December 20, 2012, and Subchapter I for enumerated
offenses that were committed prior to that date. Revised Subchapter H differs
from SORNA I by allowing some offenders to register by phone rather than in
person with the Pennsylvania State Police; removing or changing the
registration requirement for some non-sexual offenses; and creating a process
through which an offender can petition for removal from the registry after 25
years. See 42 Pa.C.S. §§ 9799.25(a.1), (a.2); 9799.14; 9799.15(a.2).
5
Constitutional challenges present pure questions of law, for which our
standard of review is de novo and the scope of review is plenary. See
Commonwealth v. Moore, 222 A.3d 16, 18 (Pa. Super. 2019);
Commonwealth v. Dixon, 907 A.2d 468, 472 (Pa. 2006).
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future dangerousness. Id. at 581. Following an analysis under Kennedy v.
Mendoza-Martinez, 372 U.S. 144 (1963), the court additionally held that
the statute was punitive despite the legislature’s stated non-punitive purpose.
Id. at 581.
Based on the determination of punitive effect, the trial court
concluded that the registration requirements, which can result in
lifetime registration branding an offender at high risk of
recidivation, violated (1) the requirements of Apprendi [v. New
Jersey, 530 U.S. 466 (2000)] and Alleyne [v. United States,
1570 U.S. 99 (2013)], (2) imposed sentences in excess of the
statutory maximum sentence, (3) constituted cruel and unusual
punishment, and (4) violated the separation of powers doctrines
by preventing trial courts from imposing individualized sentences.
Id. In rendering its decision, the court relied on expert affidavits and
supporting evidence submitted by the defense in which “three experts
conclud[ed] that sexual offenders generally have low recidivism rates and
question[ed] the effectiveness of sexual offender registration systems such as
SORNA.” Id. at 574. The Commonwealth appealed the court’s order to the
Supreme Court. See 42 Pa.C.S. 722(7).
The Supreme Court determined that the factual record was insufficient
to render a decision on the merits of the constitutional claims and remanded
the case to the trial court for further development of the record. Id. at 594.
While the defense had submitted scientific evidence in support of its claims,
the Supreme Court acknowledged that there may not be a consensus in the
scientific community regarding recidivism rates for sexual offenders and the
efficacy of sexual offender registration systems. Id. The court concluded that
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it could not examine the due process challenge or the validity of the legislative
findings underpinning the irrebuttable presumption in Revised Subchapter H
without a more comprehensive review of the relevant scientific evidence:
As is apparent from the trial court findings, the evidence
presented by Appellee provides a colorable argument to debunk
the settled view of sexual offender recidivation rates and the
effectiveness of tier-based sexual offender registration systems
underlying the General Assembly’s findings as well as various
decisions of this Court and the United States Supreme Court.
Nevertheless, as the trial court did not have the benefit of the
opposing science, if any, the evidence currently in the record does
not provide a sufficient basis to overturn the legislative
determination. Accordingly, we conclude that the proper remedy
is to remand to the trial court to provide both parties an
opportunity to develop arguments and present additional evidence
and to allow the trial court to weigh that evidence in determining
whether Appellee has refuted the relevant legislative findings
supporting the challenged registration and notification provisions
of Revised Subchapter H.
Id. at 595-96. In addition, because the trial court relied in part on the
defense’s scientific evidence when it analyzed whether Revised Subchapter H
was punitive under the Mendoza-Martinez factors, the Supreme Court
ordered the trial court to reconsider and reweigh those factors on remand.
Id. at 593-94.
Following Torsilieri, this court has declined to consider identical
constitutional challenges to Revised Subchapter H when these cases do not
present the developed record of scientific evidence that the Supreme Court
held was necessary to disposition of the claims. See Commonwealth v.
Mickley, __ A.3d __, 1258 EDA 2019, at *5 (Pa. Super. Sept. 24, 2020);
Commonwealth v. Torres, 2666 EDA 2019, at *3 (Pa. Super. Aug. 7, 2020)
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(unpublished memorandum).6 As the appellants in Mickley and Torres
raised the same constitutional claims as the defense in Torsilieri, we
concluded that we could not pass on the merits of those claims when the
evidentiary record was equally deficient and remanded for further
development of the claims. See also Commonwealth v. Muhammad, __
A.3d __, 1455 MDA 2018, at *6 (Pa. Super. Oct. 23, 2020) (“Since the record
in this case is more sparse than in Torsilieri, it would be inconsistent with
Torsilieri for us to rule on Appellant’s facial challenge without further
evidentiary proceedings.” (footnote omitted)).7
Popovich’s claims are on all fours with those presented in Torsilieri,
Mickley and Torres. Popovich filed a timely post-sentence motion
challenging the legality and constitutionality of her registration requirement
by raising substantially the same claims as were presented in Torsilieri,
Mickley and Torres. See Post Sentence Motion, 12/20/18, at 3-6. The trial
court denied the motion without a hearing, citing the presumption of
constitutionality that applies to all duly enacted legislation. See Order,
4/16/19; Trial Court Opinion, 7/9/19, at unnumbered 6-7. However, the
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6
Non-precedential decisions filed after May 1, 2019, may be cited for their
persuasive value. Pa.R.A.P. 126(b).
7
We note that the court in Muhammad granted the appellant relief on her
as-applied constitutional challenge to her Revised Subchapter H registration
requirements. Commonwealth v. Muhammad, __ A.3d __, 1455 MDA
2018, at *8 (Pa. Super. Oct. 23, 2020).
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Torsilieri court held that despite the deference afforded to legislative findings
of fact, courts retain the power to examine those findings to ensure that they
comport with our Constitution. Torsilieri, supra, at 583-84. Accordingly,
we vacate the portion of the order denying Popovich’s post-sentence motion
challenging her registration requirements and remand for a hearing at which
the parties can present evidence related to these claims. Torsilieri, supra;
Mickley, supra.
Vacated in part. Case remanded for further proceedings consistent with
this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/04/2021
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