Com. v. Spears, V. ( 2021 )

J-S32008-20 & J-S32009-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VALNN D. SPEARS :
:
Appellant : No. 2424 EDA 2019
Appeal from the Judgment of Sentence Entered April 26, 2019
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0000934-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VALNN D. SPEARS :
:
Appellant : No. 2439 EDA 2019
Appeal from the Judgment of Sentence Entered April 26, 2019
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0001307-2018
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: Filed: April 14, 2021
Appellant, Valnn D. Spears, appeals from the aggregate judgment of
sentence of 44 years and 8 months to 148 years and 4 months, which was
imposed after his jury trial convictions for two counts each of rape of a child,
involuntary deviate sexual intercourse with a child, indecent assault, unlawful
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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contact with minor relating to sexual offenses, endangering welfare of
children, and corruption of minors and one count each of incest, disseminating
explicit sexual materials to a minor, aggravated indecent assault, and indecent
exposure.1 On appeal, Appellant raises evidentiary claims and challenges the
constitutionality of his classification as a Tier III sex offender under
Pennsylvania’s Sex Offender Registration and Notification Act (“SORNA”), 2
with its lifetime sex offender registration requirements.3 After careful review,
we affirm.
On May 23, 2018, Appellant was charged with various crimes relating to
his sexual abuse of his two sons, E.S. and M.S., from 2008 to 2015. E.S.
testified at Appellant’s jury trial. During cross-examination of E.S., when
Appellant attempted to admit an electronic mail message (“e-mail”),
purportedly sent by E.S. to Appellant, the following dialogue occurred:
Q. Okay. So, [E.S.], if you take a look at Defen[dant’s]
Exhibit 8, please, and there’s the body of an email, begins at the
bottom, and it looks to be from [4]@gmail.com, okay?
A. Yeah.
____________________________________________
1 18 Pa.C.S. § 3121(c), § 3123(b), § 3126(a)(7) (“complainant is less than 13
years of age”), § 6318(a)(1), § 4304(a)(1) (“parent, guardian or other person
supervising the welfare of a child under 18 years of age . . . commits an
offense”), § 6301(a)(1), § 4302, § 5903(c)(1), § 3125(a)(7) (“complainant is
less than 13 years of age”), and § 3127(a), respectively.
2 42 Pa.C.S. §§ 9799.10-9799.42.
3 SORNA’s tier system is explained in more detail below.
4 The local part of the e-mail address is E.S.’s name. We have removed this
information in order to protect E.S.’s privacy.
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Q. And the time stamp says October 8, 2017 at 2:11 a.m. in
the morning; is that correct?
A. Yeah.
Q. Did you send that message?
A. No, I don’t remember.
Q. You don’t remember?
A. No.
Q. So you might have sent it? You might not have sent it?
A. No, I don’t.
Q. You don’t remember?
A. No, I don’t think I did.
Q. Okay. You’re the one who has access to []@gmail.com,
correct?
A. Yeah.
Q. And the message says, “Hey I need you to send me a iPhone
please, I need one. Don’t tell anyone I sent you this. And DON’T
put your name on it. [E.S.],” correct?
A. Yeah. . . .
Q. Okay. And then there was a second message nine minutes
later, at 2:20 a.m., and that says, “I also need you to send me 12
pictures of your penis and 1 video, so that I can get a free laptop,
[E.S.]?"
A. Yeah, I don’t remember sending that.
N.T. Testimony of E.S., 12/5/2018, at 49-50 (capitalization in original).
Appellant did not move to admit the exhibit at this time. E.S.’s mother
(“Mother”) also testified about E.S.’s initial disclosure to her and her conduct
immediately thereafter. Trial Court Opinion, dated October 15, 2019, at 3-6.
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Appellant called John Kowalczyk, an investigator for the Public
Defender’s Office. N.T., 12/6/2018, at 46-47. Kowalczyk was shown two
exhibits marked as Defendant’s Exhibits 15 and 16.5 Id. at 48-49. Kowalczyk
testified that the exhibits were e-mails that he received from Appellant’s
Gmail6 account, which were addressed to Appellant from a Gmail address that
appeared to be in E.S.’s name. Id. at 49-50. Appellant moved for their
admission, and the Commonwealth objected on the basis of insufficient
foundation. Id. at 50. After argument by both parties, the trial court
concluded that the e-mails had not been properly authenticated and sustained
the objection, but the court agreed to “make them part of the record for
appellate review.” Id. at 54.
Appellant was convicted in both cases on all counts that were
submitted to the jury.3 Prior to being sentenced, Appellant filed a
“Motion to Declare SORNA Unconstitutional and Preclude Sex
Offender Registration,” wherein he requested, inter alia, that th[e
trial c]ourt not conduct a Sexually Violent Predator (“SVP”)
hearing, as same violated his constitutional rights. [The trial
court] granted Appellant’s Motion in part, based on
Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017),
and declined to hold an SVP hearing. All other aspects of
Appellant’s Motion were denied without prejudice for Appellant to
raise same post-sentence.
____________________________________________
5 None of these exhibits are included in the certified record, but, from their
descriptions in the notes of testimony, the content of Defendant’s Exhibits 15
and 16 appears to be identical to that of Defendant’s Exhibit 8, except that
Defendant’s Exhibits 15 and 16 were divided into two separate documents
instead of presented as one e-mail chain, as they were in Exhibit 8.
6 Gmail is a free e-mail service developed by Google.
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3 In case number 1307 CR 2018, there was an Amended
Criminal Information after th[e trial c]ourt granted the
Commonwealth’s motion to withdraw Count VII.
Additionally, to the extent the Amended Criminal
Information in case number 1307 CR 2018 included counts
that were duplicative of the counts in the Criminal
Information in case number 934 CR 2018, only one of each
count was submitted to the jury.
Trial Court Opinion, dated October 15, 2019, at 1-2. There was no finding by
the jury of when the offenses related to Appellant’s convictions actually
occurred. See Verdict Sheet, 12/7/2018.
During his sentencing hearing on April 26, 2019, Appellant raised and
preserved the issue of whether SORNA was punitive. N.T., 4/26/2019, at 6,
16. The trial court denied Appellant’s motion without prejudice to raise it in a
post-sentence motion. Id. at 21.
At Docket Number CP-45-CR-0000934-2018, the trial court sentenced
Appellant to an aggregate judgment of 248 to 748 months of confinement –
i.e., 20 years and eight months to 62 years and four months of confinement.
At Docket Number CP-45-CR-0001307-2018, the trial court sentenced
Appellant to an aggregate judgment of 288 to 1,032 months of confinement
– i.e., 24 to 86 years of confinement – to be served consecutively to
Appellant’s sentence at Docket Number CP-45-CR-0000934-2018.
Accordingly, Appellant’s total sentence of confinement is 44 years and eight
months to 148 years and four months.
Appellant is classified as a Tier III Sex Offender and is subject to
lifetime registration requirements as set forth in 42 Pa. C.S.A.
§ 9799.23. Appellant was notified of his Sex Offender Registration
classification and requirements at sentencing. On May 6, 2019,
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Appellant filed timely “Post Sentence Motions” wherein the only
issue raised was a challenge to the constitutionality of SORNA as
applied to Appellant.
On May 31, 2019, [the Court of Common Pleas of Monroe County]
sat en banc . . . to hear Appellant’s SORNA challenge along with
a number of other defendants who had likewise challenged
SORNA’s constitutionality.
Trial Court Opinion, dated October 15, 2019, at 2. At the hearing, Appellant
again raised and preserved the issue of whether SORNA was punitive. N.T.,
5/31/2019, at 9-11, 16-19. He additionally raised and preserved the question
of whether SORNA violated due process by creating a rebuttable presumption
that a sex offender is likely to reoffend. Id. at 15-16. Appellant requested
that the en banc panel declare SORNA unconstitutional in its entirety, citing
to a decision from the Chester County Court of Common Pleas,
Commonwealth v. Torsilieri, Docket Number CP-15-CR-0001570-2016,7
____________________________________________
7 At the time of the en banc panel of the Court of Common Pleas of Monroe
County, two appeals of the Torsilieri decision from the Court of Common
Pleas of Chester County were pending: one appeal by Defendant Torsilieri
before this Court, Commonwealth v. Torsilieri, 221 A.3d 280 (Pa. Super.
2019); and a second appeal by the Commonwealth filed directly to the
Supreme Court of Pennsylvania pursuant to 42 Pa.C.S. § 722(7) (relating to
the Supreme Court’s exclusive jurisdiction over appeals from final orders of
the Court of Common Pleas in matters where the Court of Common Pleas has
held, inter alia, a statute to be unconstitutional), Commonwealth v.
Torsilieri, 232 A.3d 567 (Pa. 2020). In the former, this Court affirmed, and
Defendant Torsilieri petitioned for allowance of appeal with the Pennsylvania
Supreme Court, which our Supreme Court denied. Commonwealth v.
Torsilieri, 230 A.3d 338 (Pa. 2020).
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which found Subchapter H8 of SORNA to be unconstitutional. Id. at 23. “By
Order en banc, Appellant’s post-sentence motion regarding SORNA was denied
on July 18, 2019.” Trial Court Opinion, dated October 15, 2019, at 2. On
August 19, 2019, Appellant filed this timely9 direct appeal.10
Appellant presents the following issues for our review:
1. Whether the [t]rial [c]ourt erred when it admitted the
hearsay statements of one of the victims ([N.T.], 12/5/18, at pg.
210) presented through his mother?
2. Whether the [t]rial [c]ourt erred when it excluded the e-
mails ([N.T.], 12/6/18, at pg. 50 et seq) sent from the e-mail
account of the victim, E.S., to the Appellant because the e-mails
were not authenticated?
[3.] Does registration under Act 29[11] constitute criminal
punishment and therefore violate the separation of powers
doctrine because it usurps exclusive judicial adjudicatory and
sentencing authority?
[4.] If registration under Act 29 is punishment, does the
imposition of mandatory sex offender registration for the instant
offense constitute cruel and unusual punishment in violation of the
Eighth and Fourteenth Amendments to the United States
Constitution and Article 1, Section 13 of the Pennsylvania
Constitution?
____________________________________________
8The relevant subchapters of the current version of SORNA are discussed in
more detail below.
9 Thirty days after July 18, 2019, was Saturday, August 17, 2019. The next
business day thereafter was Monday, August 19, 2019. See 1 Pa.C.S. § 1908
(“Whenever the last day of any such period shall fall on Saturday or Sunday,
. . . such day shall be omitted from the computation.”).
10 Appellant filed his statement of errors complained of on appeal on
September 9, 2019. The trial court entered its opinion on October 15, 2019.
11 Act 29 of 2018 is discussed in more detail below.
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[5.] If registration under Act 29 is punishment, does it
contravene the 5th, 6th and 14th Amendments of the United
States Constitution and the corresponding protections of the
Pennsylvania Constitution because not every fact necessary to
support the imposition of a mandatory minimum sentence must
be found by a jury beyond a reasonable doubt?
[6.] Does registration under Act 29 violate substantive due
process under Article 11 [sic] of the Pennsylvania Constitution
because it deprives individuals of the fundamental right to
reputation and fails to satisfy strict scrutiny?
[7.] Does registration under Act 29 deny defendant due process
under Articles 1 and 11 [sic] of the Pennsylvania Constitution
because it creates an irrebuttable presumption that those
convicted of enumerated offenses “pose a high risk of committing
additional sexual offenses” depriving those individuals of their
fundamental right to reputation?
[8.] Does registration under Act 29 deny defendant procedural
due process under the Pennsylvania and Federal Constitutions
because it unlawfully impinges the right to reputation without
notice and an opportunity to be heard?
Appellant’s Brief at 4-6 (issues re-ordered to facilitate disposition).
Evidentiary Issues
Appellant’s first two claims challenge the admission of evidence.
The admissibility of evidence is a matter within the sound
discretion of the trial court and will be reversed only where there
is a clear abuse of discretion. . . . Evidence is admissible if it is
relevant—that is, if it tends to establish a material fact, makes a
fact at issue more or less probable, or supports a reasonable
inference supporting a material fact—and its probative value
outweighs the likelihood of unfair prejudice.
Commonwealth v. Clemons, 200 A.3d 441, 474 (Pa. 2019) (citations
omitted).
Preliminarily, we note that Appellant’s first challenge concerns Mother’s
testimony. However, the notes from Mother’s testimony were not included in
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the certified record.12 It is the responsibility of the party raising an issue on
appeal to guarantee that all of the documents that this Court will need to
render a decision are in the certified record; as this Court has explained:
A failure to ensure that the record is complete risks waiver of
appellate issues that are dependent on the missing items.8
8 See, e.g., Lundy v. Manchel, 865 A.2d 850, 855 (Pa.
Super. 2004) (where appellant based claim on partnership
dissolution agreement, but agreement did not appear in the
certified record, claim was deemed waived); Eichman v.
McKeon, 824 A.2d 305, 316 (Pa. Super. 2003) (where issue
on appeal was whether trial court erred in failing to sanction
defendant for alleged discovery violation, but documents
necessary to evaluate that claim were absent from the
record, issue was deemed waived), appeal denied, 576 Pa.
712, 839 A.2d 352 (2003). As the Note to Appellate Rule
1921 points out, the responsibility for assuring that needed
materials are included in the certified record rests with the
party relying on those materials. Because that usually is the
appellant—the party seeking relief from the adverse
judgment in the trial court—we have frequently stated that
the appellant bears this responsibility and risks waiving
appeal rights by a failure to comply. See, e.g.,
Commonwealth v. Wint, 730 A.2d 965, 967 (Pa. Super.
1999); Pa.R.A.P. 1931, Expl. Cmt.—2004. See also
Commonwealth v. Almodorar, 610 Pa. 368, 20 A.3d 466,
467 (2011) (discussing shared responsibility of appellant
and trial court under Pa.R.A.P. 1931).
Erie Insurance Exchange v. Moore, 175 A.3d 999, 1006-07 (Pa. Super.
2017), aff’d, 228 A.3d 258 (Pa. 2020). As Appellant – i.e., the party
challenging Mother’s testimony – did not confirm that the requisite notes of
testimony were in the record, this challenge is waived.
____________________________________________
12 Our Prothonotary contacted Monroe County, which transmitted other
missing transcripts to this Court; nevertheless, the notes of testimony for
Mother remained absent from the record.
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Next, Appellant contends that the trial court erred when it denied the
admission of e-mails from E.S. to Appellant on the basis that they were not
authenticated. Appellant’s Brief at 18. Appellant continues that the evidence
that E.S. acknowledged that his e-mail address was listed as the sender on
the e-mails and that no one else had the log-in information for E.S.’s e-mail
account, combined with Kowalczyk’s testimony that he had retrieved the same
e-mails from Appellant’s e-mail address, should have been enough to
authenticate the e-mails. Id.Again, the exhibits at issue – Defendant’s Exhibit 8 or Defendant’s
Exhibits 15 and 16 – were not in the certified record, despite the trial court’s
instruction that they be included for our review. N.T., 12/6/2018, at 54. For
this reason, we could once more find waiver of this claim due to Appellant’s
failure to ensure that the record was complete. Erie, 175 A.3d at 1006-07.
However, the content of the e-mails was read aloud during trial, and the notes
of testimony containing those recitations were included in the certified
record.13 N.T. Testimony of E.S., 12/5/2018, at 49-50. Accordingly, we know
what the e-mails stated and consequently choose not to find waiver; ergo, we
consider the question of whether the e-mails were properly authenticated.
____________________________________________
13 More accurately, the notes of testimony were added to the certified record
after this Court’s Prothonotary contacted Monroe County requesting missing
documents.
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Pennsylvania law holds that authentication is a threshold inquiry
for all evidence and provides that the following principles govern
authentication of digital communications . . .
Pursuant to Pennsylvania Rule of Evidence 901, authentication is
required prior to admission of evidence. The proponent of the
evidence must introduce sufficient evidence that the matter is
what it purports to be. See Pa.R.E. 901(a). Testimony of a
witness with personal knowledge that a matter is what it is claimed
to be can be sufficient. See Pa.R.E. 901(b)(1). Evidence that
cannot be authenticated by a knowledgeable person, pursuant to
subsection (b)(1), may be authenticated by other parts of
subsection (b), including circumstantial evidence pursuant to
subsection (b)(4). See Pa.R.E. 901(b)(4).
Commonwealth v. Talley, 236 A.3d 42, 59 (Pa. Super. 2020) reargument
denied (September 23, 2020).
In Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. 2011), this Court
considered the necessary procedure for authenticating another form of
electronic communication, text messages. In Koch, a detective testified at
trial that incriminating text messages came from a cellular telephone
belonging to the defendant; this Court concluded that “authentication of
electronic communications, like documents, requires more than mere
confirmation that the number or address belonged to a particular person.” Id.
at 1005. This Court continued that the testimony of the detective was
insufficient to authenticate the text messages, where there was no testimony
from any person who had sent or received the text messages nor any
contextual clues revealing the identity of the sender. Id. This Court hence
concluded that the admission of the text messages constituted an abuse of
discretion. Id.- 11 -
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Analogously, in the current action, an investigator, Kowalczyk, testified
that electronic communications came from an e-mail address belonging to a
victim, E.S. Compare N.T., 12/6/2018, at 49-50, with Koch, 39 A.3d at
1005. E.S. also testified that the e-mail address listed on the exhibits
belonged to him. N.T. Testimony of E.S., 12/5/2018, at 49-50. However, as
this Court observed in Koch, “authentication of electronic communications,
like documents, requires more than mere confirmation that the number or
address belonged to a particular person.” 39 A.3d at 1005. Just as this Court
concluded that the testimony of the detective in Koch was insufficient to
authenticate the text messages, we find that the testimony of Kowalczyk is
insufficient to authenticate the e-mails, where there was no testimony from
either the person who had allegedly sent the e-mail or the recipient of the e-
mail – i.e., from either E.S. or Appellant – to authenticate the e-mails. See
id. In fact, greater doubt exists as to the authenticity of the e-mails in the
current appeal than of the text messages in Koch, because, in the current
case, the alleged sender, E.S., had no recollection of having sent the
messages. N.T. Testimony of E.S., 12/5/2018, at 49-50. Additionally, the e-
mail are short, consisting of one to three sentences each, and thereby provide
no circumstantial evidence nor contextual clues revealing the identity of the
sender. Compare id. with Talley, 236 A.3d at 59 (citing Pa.R.E. 901(b)(4)),
and Koch, 39 A.3d at 1005. In Koch, the text messages had been admitted
at the trial court level, and this Court held that the trial court had abused its
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discretion in doing so. 39 A.3d at 1005. In the current matter, the trial court
had precluded the admission of the e-mails, and we therefore conclude that
the trial court did not abuse its discretion in doing so. Clemons, 200 A.3d at
474; Koch, 39 A.3d at 1005. Thus, Appellant is not entitled to relief on either
of his evidentiary challenges, and we therefore affirm his convictions.
SORNA
Appellant’s remaining claims concern his sexual offender registration
requirements. “A challenge to the legality of sentence is a question of law;
our standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Alston, 212 A.3d 526, 528 (Pa. Super. 2019).
Nonetheless, before we can address the merits of Appellant’s issues related
his registration requirements, we must review the relevant sexual offender
regulatory statutes and several relevant cases interpreting them.
On October 24, 1995, the first sex offender registration law, known as
Megan’s Law , was enacted, but, in 1999, the Supreme Court of Pennsylvania
deemed substantial portions of it to be unconstitutional. Commonwealth v.
Williams, 733 A.2d 593 (Pa. 1999).
In the wake of Williams . . . , the General Assembly enacted
Megan’s Law II, 42 Pa.C.S. §§ 9791–9799.7 (expired), in May
2000 to address the constitutionally defective aspects of Megan’s
Law I, relating to SVP designation. . . . [Megan’s Law II] mandated
either ten-year or lifetime registration of their addresses upon
release and any subsequent change in address, which information
was provided to the local chief of police.
Commonwealth v. Torsilieri, 232 A.3d 567, 576 (Pa. 2020).
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The General Assembly made further amendments to Megan’s Law II with
the passage of Act 152 of 2004, which was signed into law on November 24,
2004. Those amendments are sometimes referred to as “Megan’s Law III.”
They were deemed unconstitutionally enacted in Commonwealth v.
Neiman, 84 A.3d 603 (Pa. 2013).
Prior to the Supreme Court’s decision in Neiman, id., on December 20,
2011, the General Assembly passed the P.L. 446, No. 111, § 12, which was
effective one year thereafter; this act replaced Megan’s Law with SORNA
(later, retroactively referred to as “SORNA I”). According to the accompanying
legislative findings: “Sexual offenders pose a high risk of committing
additional sexual offenses and protection of the public from this type of
offender is a paramount governmental interest.” 42 Pa.C.S. § 9799.11(a)(4).
Additionally,
SORNA [I] classifie[d] offenders and their offenses into three tiers.
42 Pa.C.S. § 9799.14. Those convicted of Tier I offenses are
subject to registration for a period of fifteen years and are
required to verify their registration information and be
photographed, in person at an approved registration site,
annually. 42 Pa.C.S. § 9799.15(a)(1), (e)(1). Those convicted
of Tier II offenses are subject to registration for a period of
twenty-five years and are required to verify their registration
information and be photographed, in person at an approved
registration site, semi-annually. 42 Pa.C.S. § 9799.15(a)(2),
(e)(2).
Those convicted of Tier III offenses are subject to lifetime
registration and are required to verify their registration
information and be photographed, in person at an approved
registration site, quarterly. 42 Pa.C.S. § 9799.15(a)(3), (e)(3).
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Commonwealth v. Muniz, 164 A.3d 1189, 1206-07 (Pa. 2017) (plurality)
(footnotes omitted). When SORNA I first became effective on December 20,
2012, it applied to convicted sex offenders already required to register and
prior sex offender registration requirements expired. See 42 Pa.C.S.
§ 9799.10(4). In Muniz, 164 A.3d 1189,
[the Supreme] Court [of Pennsylvania] . . . found SORNA [I]
violated . . . offenders’ ex post facto rights due to its retroactive
application to those convicted prior to its effective date of
December 20, 2012. . . . [T]he Court concluded that SORNA was
punitive, such that retroactive application of the provision violated
Pennsylvania’s ex post facto clause.
Torsilieri, 232 A.3d 567, 580 (Pa. 2020).
In response to Muniz, the General Assembly amended SORNA on
February 21, 2018, by passing Act 10 of 2018, which was immediately
effective. See P.L. 27, No. 10, §§ 1-20.
Act 10 split SORNA, which was previously designated in the
Sentencing Code as Subchapter H, into two subchapters. Revised
Subchapter H applies to crimes committed on or after
December 20, 2012, whereas Subchapter I applies to crimes
committed after April 22, 1996, but before December 20, 2012.
In essence, Revised Subchapter H retained many of the provisions
of SORNA, while Subchapter I imposed arguably less onerous
requirements on those who committed offenses prior to
December 20, 2012, in an attempt to address [the] conclusion in
Muniz that application of the original provisions of SORNA to
these offenders constituted an ex post facto violation.
Torsilieri, 232 A.3d at 580-81. On June 12, 2018, the General Assembly
passed Act 29 of 2018, re-enacting and amending SORNA; it was immediately
effective. See P.L. 140, No. 29, §§ 1-23.
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The question of whether current Subchapter H or Subchapter I of SORNA
applies to Appellant thus is a crucial starting point. According to Alston, 212
A.3d at 528, 530, “when an appellant’s offenses straddle the effective dates
of Subchapters H and I of SORNA” and “the jury did not specifically find the
date of the offenses,” the application of Subchapter H is unconstitutional, as
it “mirrors the version of SORNA found unconstitutional in” Commonwealth
v. Muniz, 164 A.3d 1189 (Pa. 2017) (plurality); “instead, the court should
apply Subchapter I.” Analogously, in the current action, Appellant’s criminal
sexual conduct straddles the operative dates for Subchapters H and I, and the
jury did not make a specific finding as to the dates of the offenses.
Consequently, the registration requirements under Subchapter I apply to
Appellant.
This finding is significant, because, during the pendency of this appeal,
the Supreme Court of Pennsylvania decided Commonwealth v. Lacombe,
234 A.3d 602, 626 (Pa. 2020), holding that “Subchapter I does not constitute
criminal punishment[.]” All of Appellant’s issues concerning whether SORNA
is punitive thus are moot and meritless. See Appellant’s Brief at 48, 53, 62,
72.
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Appellant’s remaining three claims concern whether SORNA infringes on
the right to reputation under the Pennsylvania Constitution[14] by creating a
“flawed” irrebuttable presumption and thereby denying Appellant of
“procedural due process under state and federal law.” Appellant’s Brief at 22,
31, 44. Appellant relies heavily upon In re J.B., 107 A.3d 1 (Pa. 2014), in
which the Supreme Court determined that SORNA as applied to juvenile sex
offenders violated due process rights through the use of an irrebuttable
presumption. Appellant cites to J.B., 107 A.3d at 19, for the principle that
the right to reputation “cannot be abridged without compliance with state
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14 According to Article I, Sections 1 and 11 of the Pennsylvania
Constitution:
All men are born equally free and independent, and have certain
inherent and indefeasible rights, among which are those of
enjoying and defending life and liberty, of acquiring, possessing
and protecting property and reputation, and of pursuing their
own happiness. . . .
All courts shall be open; and every man for an injury done him in
his lands, goods, person or reputation shall have remedy by due
course of law, and right and justice administered without sale,
denial or delay.
Pa. Const. art. I, §§ 1, 11 (emphasis added). These explicit references to
“reputation” in the Pennsylvania Constitution have provided the basis for our
appellate courts to regard reputation “as a fundamental interest which cannot
be abridged without compliance with constitutional standards of due process
and equal protection.” Commonwealth v. Mickley, 240 A.3d 957, 962 n.7
(Pa. Super. 2020) (quoting R. v. Commonwealth of Pennsylvania,
Department of Public Welfare, 636 A.2d 142, 149 (Pa. 1994)).
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constitutional standards of due process.” Appellant’s Brief at 22; see also id.
at 23-25, 31-32, 34, 36, 38-41, 43-44. Appellant’s argument continues:
Registration harms reputation by “improperly brand[ing] all
juvenile offenders’ reputations with an indelible mark of a
dangerous recidivist.” In re J.B., 107 A.3d at 19. While J.B.
involved people who committed their crimes as minors, the
reputational harm was often inflicted during adulthood. Act 29’s
effect is identical.
Id. at 22-23.
However, a similar argument was made before the Commonwealth
Court15 in W.W. v. Pennsylvania State Police, No. 239 M.D. 2020 (Pa.
Cmwlth. filed January 15, 2021) (unpublished memorandum).16 In that
action, W.W. “challenges his sex offender registration obligations under
Subchapter I[.]” Id. at 1. Like Appellant, W.W. “maintain[ed] that Act 29
deprives him of procedural due process by creating an irrebuttable
presumption that he is incapable of rehabilitation, which encroaches upon his
fundamental right to reputation, without any mechanism for proving
otherwise.” Id. at 3.
____________________________________________
15 “Although we are not bound by decisions from the Commonwealth Court
. . ., we may use them for guidance to the degree we find them useful[ and]
persuasive[.]” Ferraro v. Temple University, 185 A.3d 396, 404 (Pa. Super
2018) (citing Newell v. Montana West, Inc., 154 A.3d 819, 823 & n.6 (Pa.
Super. 2017)).
16 “‘Although we prefer to avoid citation to unreported opinions of any court,’
where there is a ‘scarcity of case law on [the] subject[,]’ we are be
‘compel[led] ... to consider all available writings on [the] topic.’” Farese v.
Robinson, 222 A.3d 1173, 1188 (Pa. Super. 2019) (quoting Commonwealth
v. Manivannan, 186 A.3d 472, 486 n.9 (Pa. Super. 2018)), reargument
denied (January 13, 2020).
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As the Commonwealth Court acknowledged, “[t]he difference [between
J.B. and W.W.] is that we are not dealing with juvenile sex offenders, but
adult sex offenders.” W.W., No. 239 M.D. 2020, at 9 (citing Lacombe, 234
A.3d 602; Muniz, 164 A.3d 1189). Analogously, the difference between the
current action and J.B. is that Appellant is not a juvenile sex offender but an
adult one. The Commonwealth Court further explained:
Juveniles subject to registration suffered irreparable harms,
including difficulty obtaining housing, employment, schooling, etc.
SORNA did not provide juvenile offenders a meaningful
opportunity to challenge the presumption. A reasonable
alternative means of ascertaining the presumed fact was already
in use in Pennsylvania for assessing which juvenile offenders pose
a high risk of recidivism.[17] The Court concluded:
Given that juvenile offenders have a protected right to
reputation encroached by SORNA’s presumption of
recidivism, where the presumption is not universally true,
and where there is a reasonable alternative means for
ascertaining the likelihood of recidivating, we hold that the
application of SORNA’s current lifetime registration
requirements upon adjudication of specified offenses
violates juvenile offenders’ due process rights by utilizing an
irrebuttable presumption.
____________________________________________
17 A reasonable alternative, in fact, is already in use in Pennsylvania
under SORNA. . . . SORNA specifically mandates individualized
assessment of juveniles who have been adjudicated delinquent of
specified crimes and who are committed to an institution nearing
their twentieth birthday to determine whether continued
involuntary civil commitment is necessary. A similar process could
be utilized to assess which juvenile offenders are at high risk to
recidivate.
J.B., 107 A.3d at 19 (citations omitted) (footnote discussing Oklahoma’s
model for individualized risk evaluation of juvenile offenders omitted).
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J.B., 107 A.3d at 19-20. . . . [Unlike juvenile offenders,] the
presumption that adult sex offenders as a cohort pose a higher
risk of recidivism is still accepted as universally true.
Id. at 8-9. We agree with the analysis of the Commonwealth Court and find
that J.B. is not controlling in the instant appeal involving an adult sex offender.
W.W. further addressed the question of the irrebuttable presumption:
Although the right to reputation is a fundamental right, Act 29 is
not making a determination as to W.W.’s likelihood to reoffend but
to sex offenders as a cohort. . . .
In Connecticut Department of Public Safety v. Doe, 538 U.S.
1 (2003), the United States Supreme Court considered a similar
challenge to the presumption regarding adult sex offenders under
Connecticut’s version of Megan’s Law. Therein, the United States
Supreme Court held that individuals “who assert a right to a
hearing under the Due Process Clause [(U.S. Const. amend. XIV,
§1)] must show that the facts they seek to establish in that
hearing are relevant under the statutory scheme.” Id. at 8.
“[T]he fact that respondent seeks to prove that he is not currently
dangerous is of no consequence under Connecticut’s Megan’s
Law.” Id. at 7.
Similarly, Subchapter I does not signal the dangerousness of any
particular offender. It merely provides that adult sex offenders,
as a group, have a high risk of recidivism. A hearing on his
individual dangerousness or likelihood to reoffend is irrelevant to
the universal truth of the group as a whole. Therefore, the
irrebuttable presumption doctrine does not apply.
No. 239 M.D. 2020, at 7, 9. Pursuant to W.W., we conclude that, although
reputation is a fundamental right in Pennsylvania, SORNA does not make an
determination as to Appellant’s individual likelihood to reoffend but to sex
offenders as a cohort and therefore does not implicate the irrebuttable
presumption doctrine. For the reasons given above, we find that Appellant’s
challenges to SORNA related to his right to reputation are meritless.
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* * *
Based on the foregoing, Appellant is not entitled to relief. Accordingly,
we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/14/21
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