Com. v. Salazar, R. ( 2023 )

J-S09008-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
REYES A. SALAZAR :
:
Appellant : No. 735 EDA 2020
Appeal from the Judgment of Sentence Entered January 10, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009313-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
REYES A. SALAZAR :
:
Appellant : No. 736 EDA 2020
Appeal from the Judgment of Sentence Entered January 10, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010630-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
REYES A. SALAZAR :
:
Appellant : No. 737 EDA 2020
Appeal from the Judgment of Sentence Entered January 10, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010631-2017
BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
J-S09008-21
MEMORANDUM BY OLSON, J.: FILED APRIL 3, 2023
In this consolidated appeal,1 Appellant, Reyes A. Salazar, appeals from
the January 10, 2020 judgments of sentence that imposed an aggregate
sentence of 38 to 76 years’ incarceration after a jury convicted Appellant of
rape of a child (2 counts), involuntary deviate sexual intercourse with a child
(2 counts), unlawful contact with a minor (3 counts), endangering the welfare
of a child (2 counts), corruption of a minor – third-degree felony (1 count),
corruption of a minor – first-degree misdemeanor (2 counts), and indecent
assault of a person less than sixteen years of age (1 count).2 This case returns
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1 In a May 1, 2020 per curiam order, this Court, upon Appellant’s request,
consolidated the three appeals docketed in this Court at 735 EDA 2020,
736 EDA 2020, and 737 EDA 2020.
218 Pa.C.S.A. §§ 3121(c), 3123(b), 6318(a)(1), 4304(a)(1), 6301(a)(1)(ii),
6301(a)(1)(i), and 3126(a)(8), respectively.
At trial court docket number CP-51-CR-0009313-2017 (“Docket 9313”),
Appellant was convicted of one count each of rape of a child, involuntary
deviate sexual intercourse with a child, unlawful contact with a minor,
endangering the welfare of a child, and corruption of a minor – third-degree
felony.
At trial court docket number CP-51-CR-0010630-2017 (“Docket 10630”),
Appellant was convicted of one count each of rape of a child, involuntary
deviate sexual intercourse with a child, unlawful contact with a minor,
endangering the welfare of a child, and corruption of a minor – first-degree
misdemeanor.
At trial court docket number CP-51-CR-0010631-2017 (“Docket 10631”),
Appellant was convicted of one count each of unlawful contact with a minor,
corruption of a minor – first-degree misdemeanor, and indecent assault of a
person less than sixteen years of age.
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to us after our Supreme Court vacated, in part, this Court’s order of October
1, 2021, and remanded the matter for our reconsideration in light of
Commonwealth v. Thorne, 276 A.3d 1192 (Pa. 2002).3 We vacate, in part,
Appellant’s judgments of sentence only insofar as it directs Appellant to
register as a Tier III sexual offender and remand this case for further
proceedings consistent with this memorandum.
We previously summarized the procedural history as follows:
The underlying convictions stem from the alleged sexual
abuse of three minor complainants, D.C., A.O., and A.B. On
October 7, 2019, following a jury trial, Appellant was found
guilty of the aforementioned crimes.
On January 10, 2020, the trial court sentenced Appellant to
an aggregate term of 38-76 years' incarceration. On
Docket 9313, Appellant was sentenced to 10-20 years'
incarceration for rape of a child, a consecutive term of 5-10
years’ incarceration for involuntary deviate sexual
intercourse with a child, a consecutive term of 2½-5 years'
incarceration for unlawful contact with a minor, and
concurrent terms[FN3] of 2½-5 years’ incarceration, each, for
both his conviction of endangering the welfare of a child and
his conviction of corruption of a minor – third-degree felony.
[Footnote 3] The sentences imposed for Appellant's
convictions of endangering the welfare of a child and
corruption of a minor – third-degree felony were to
run concurrent to the sentence imposed for his
conviction of unlawful contact with a minor.
Appellant received an identical sentence under
Docket 10630. On Docket 10631, Appellant was sentenced
to 1-2 years' incarceration for indecent assault of a person
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3 See Commonwealth v. Salazar, 266 A.3d 600 (Pa. Super. 2021)
(unpublished memorandum); see also Commonwealth v. Salazar, 285
A.3d 884 (Pa. 2022) (per curiam order).
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less than sixteen years of age, a concurrent term of 2-4
years’ incarceration for unlawful contact, and a consecutive
term of 1-2 years’ incarceration for his conviction of
corruption of a minor – first-degree misdemeanor. The
sentence imposed at each docket was ordered to run
consecutively [to each punishment imposed at the other
dockets]. Appellant was further ordered to comply with all
Tier III requirements under Pennsylvania's Sexual Offender
Registration and Notification Act (“SORNA”), 42 Pa.C.S.A.
§§ 9799[.]10 to 9799.41, which include[] lifetime
registration with the Pennsylvania State Police.
On January 20, 2020, Appellant filed a timely post-sentence
motion for reconsideration, arguing that the trial court failed
to consider his mitigating factors and imposed a “manifestly
unreasonable” sentence.[FN4]
[Footnote 4] On January 20, 2020, Appellant filed
notices of appeal of the judgments of sentence
entered at each of the aforementioned trial court
dockets. Upon praecipe to discontinue, this Court
discontinued the three appeals. See
Commonwealth v. Salazar at 405 EDA 2020,
406 EDA 2020, and 407 EDA 2020.
Following a hearing on February 20, 2020, the trial court
denied Appellant's post-sentence motion. Trial counsel was
permitted to withdraw, and appellate counsel was appointed
on February 24, 2020. These appeals followed.[FN5]
[Footnote 5] Both Appellant and the trial court
complied with Pa.R.A.P. 1925. The record
demonstrates that, in compliance with
Commonwealth v. Walker, 185 A.3d 969 (Pa.
2018), and its progeny, Appellant filed a separate
notice of appeal at each trial court docket.
Salazar, 266 A.3d 600, at **1-**2 (original brackets and record citation
omitted).
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On October 1, 2021, this Court affirmed Appellant’s judgments of
sentence.4 Id. at **1. In so affirming, this Court, in pertinent part, held that
Appellant waived his third issue challenging the constitutionality of
SORNA – Subchapter H. We specifically determined that Appellant waived this
claim because he did not raise the issue before the trial court. Id. at **10,
citing Pa.R.A.P. 302(a) and Commonwealth v. Reslink, 257 A.3d 21(Pa. Super. 2020).5 Appellant subsequently filed a petition for allowance of
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4 On appeal, Appellant raised the following issues for our review:
1. Did the trial court frustrate Appellant's defense strategy across
all three consolidated cases and violate his right to thoroughly
cross-examine his accuser by denying his motion to pierce
Section 3104 of the Pennsylvania Crimes Code, 18 Pa.C.S.A.
§ 3104, commonly referred to as the “Rape Shield Law”?
2. Did the trial court impose an unduly harsh sentence and fail to
consider the factors mandated by Pennsylvania's Sentencing
Code when imposing a sentence that assures Appellant will
remain incarcerated for the remainder of his natural life, when
he is no longer a risk to recidivate?
3. Should this Court rule consistently with its precedent - and the
same precedent followed by our Supreme Court - and remand
this matter so that Appellant may litigate a constitutional
challenge to his SORNA registration?
4. Was the evidence so inherently unreliable that it failed to
sustain the verdicts entered on Docket 9313 and
Docket 10630?
Salazar, 266 A.3d 600, at **2 (brackets omitted and citation omitted).
5 Our Supreme Court, in Thorne, supra, disapproved of this Court’s holding
in Reslink, supra. Thorne, 276 A.3d at 1198.
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appeal with our Supreme Court. Our Supreme Court granted Appellant’s
petition for allowance of appeal limited to Appellant’s third issue, as noted
supra, and vacated, in part, our October 1, 2021 order affirming Appellant’s
judgments of sentence. Salazar, 285 A.3d 884, at *1. Our Supreme Court
remanded the case to this Court for the limited purpose of reconsidering our
prior disposition of Appellant’s third issue, in light of Thorne, supra.
Salazar, 285 A.3d 884, at *1.
Appellant’s third issue on appeal challenges the constitutionality of
SORNA – Subchapter H.6 Specifically, Appellant alleges that SORNA
improperly adopts an irrebuttable presumption “that every person who
commits an enumerated sexually violate offense poses a high risk of
committing additional sexual offenses and has a reduced expectation of
privacy.” Appellant’s Brief at 35 (original quotation marks and brackets
omitted), citing 42 Pa.C.S.A. §§ 9799.11(a)(4) and (5). Appellant further
argues that SORNA’s registration and notification provisions impermissibly
increase his punishment without meeting the requirements of Apprendi v.
New Jersey, 530 U.S. 466 (2000)7 and Alleyne v. United States, 570 U.S.
____________________________________________6 Subchapter H of SORNA applies to the case sub judice because Appellant’s
crimes were committed on or after December 20, 2012. See Thorne, 276
A.3d at 1193 n.1 (stating, revised Subchapter H of SORNA applies to
individuals who committed their sexual offenses on or after December 20,
2012).
7 In Apprendi, the Supreme Court of the United States held that, “[o]ther
than the fact of a prior conviction, any fact that increases the penalty for a
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99 (2013),8 in violation of, inter alia, his procedural due process rights and
the doctrine of separation of powers. Appellant’s Brief at 40-41. Appellant
raised these challenges to the constitutionality of SORNA – Subchapter H for
the first time on appeal. See Appellant’s Rule 1925(b) Statement, 6/16/20;
see also Appellant’s Brief at 33-41.
Recently, our Supreme Court held that constitutional challenges to
SORNA – Subchapter H implicate the legality of a sentence and cannot be
waived on the basis that such claims were raised for the first time on appeal.
Thorne, 276 A.3d at 1198. Because Appellant’s constitutional challenges
were presented for the first time on appeal, however, there is no factual record
before us. Therefore, in consonance with Thorne, supra, we remand this
case for further development of the record related to Appellant’s challenge to
the constitutionality of SORNA – Subchapter H.
Judgments of sentence vacated, in part, insofar as Appellant is required
to register as a Tier III sexual offender under SORNA – Subchapter H.9 Case
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crime beyond the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490.
8 In Alleyne, the Supreme Court of the United States similarly held that,
“[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ that
must be submitted to the jury and found beyond a reasonable doubt.”
Alleyne, 570 U.S. at 103 (citation omitted).
9 Those aspects of this Court’s order affirming Appellant’s convictions and
rejecting his challenge to the discretionary aspects of his sentences were not
disturbed by our Supreme Court’s limited grant of allocator concerning the
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remanded for further development of Appellant’s challenge to the
constitutionality of SORNA – Subchapter H. Jurisdiction relinquished.
Judge Musmanno did not participate in the consideration or decision of
this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/3/2023
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constitutionality of SORNA – Subchapter H, as discussed supra. Salazar, 285
A.3d 884, at *1 (denying allocator as to the remaining issues).
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