J-S58037-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEFFREY R. RITENOUR
Appellant No. 581 WDA 2014
Appeal from the Judgment of Sentence April 1, 2014
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000209-2013
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 6, 2014
Appellant, Jeffrey R. Ritenour, appeals from the judgment of sentence
entered in the Fayette County Court of Common Pleas, following his jury trial
convictions for statutory sexual assault, aggravated indecent assault,
corruption of minors, and simple assault.1 We affirm.
The relevant facts and procedural history of this appeal are as follows.
The minor victim and Appellant are distant cousins who have known each
other for a long time. The victim testified that on May 24, 2012, she and
Appellant went on a walk together. While they were walking, Appellant
asked the victim to have sex with him; and the victim refused. Appellant
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1
18 Pa.C.S.A. §§ 3122.1(b), 3125(a)(8), 6301(a)(1)(ii), and 2701(a)(3),
respectively.
_________________________
*Retired Senior Judge assigned to the Superior Court.
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then pushed the victim to the ground, climbed on top of her, and removed
her shorts. Appellant touched the victim all over her body, including her
The victim testified that she and Appellant walked on the same trail and
engaged in nonconsensual sexual intercourse on two other occasions, in
June and July of 2012. Appellant was fifty-one (51) years old at the time of
the offenses. The victim was fourteen (14) years old at the time of the first
assault, and fifteen (15) years old at the time of the second and third
assaults.
The victim told her ex- -
trial, a Pennsylvania State Trooper testified th
residence as part of the investigation. Appellant initially denied the assaults,
but he eventually confessed to the first assault, which occurred on May 24,
2012. The trooper read Appellant his Miranda2 warnings, and Appellant
r
A jury convicted Appellant on January 9, 2014, of statutory sexual
assault, aggravated indecent assault, corruption of minors, and simple
assault. On April 1, 2014, the court sentenced Appellant to three (3) to ten
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2
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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requirement under the Sex Offender Registration and Notification Act
3
Appellant did not file any post-sentence motions. Appellant
timely filed a notice of appeal on April 11, 2014. That same day, the court
ordered Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied.
Appellant raises the following issues for our review:
DID THE COMMONWEALTH FAIL TO PROVE BEYOND A
REASONABLE DOUBT THAT APPELLANT HAD ANY
UNLAWFUL CONTACT WITH THE MINOR VICTIM?
IS IT UNCONSTITUTIONAL TO REQUIRE APPELLANT TO
REGISTER FOR A LIFETIME WHEN SAID REGISTRATION
REQUIREMENT EXCEEDS THE STATUTORY MAXIMUM
IS [SORNA] UNCONSTITUTIONAL IN REQUIRING
APPELLANT TO REGISTER FOR A LIFETIME?
In his first issue, Appellant argues the Commonwealth provided
insufficient evidence to prove his guilt. Appellant contends the victim did not
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3
on December 20, 2012. By its terms, any individual who was then being
supervised by the board of p
Commonwealth v. Partee, 86 A.3d 245, 246 (Pa.Super. 2014). SORNA
supervision of sex offenders. SORNA designates a conviction for statutory
subjecting a defendant to a lifetime registration requirement. 42 Pa.C.S.A. §
9799.14(d)(3); 42 Pa.C.S.A. § 9799.15(a)(3).
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go to a doctor for a physical examination, and the Commonwealth presented
no medical evidence that the victim had intercourse with Appellant or
anyone else. Appellant alleges the record does not include any evidence
that the victim resisted or attempted to fight off Appellant. Appellant claims
the victim continued to go on walks alone with Appellant and did not fear
Appellant. Appellant maintains the Commonwealth failed to present
sufficient evidence to prove beyond a reasonable doubt that the victim ever
had intercourse with Appellant. Appellant concludes this Court should set
aside the verdict. We disagree.
Initially, we observe:
The standard we apply in reviewing the sufficiency of the
the light most favorable to the verdict winner, there is
sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
-finder unless
the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the [trier] of fact
while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal
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denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v.
Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)).
Instantly, the trial court concluded:
It cannot be disputed that the age of consent for sexual
relations in Pennsylvania is 16 years. [18 Pa.C.S.A. §
signed, written confession to one of the three sexual
encounters, this ground of insufficiency is so utterly
without merit as to be frivolous.
(Trial Court Opinion, filed May 2, 2014, at 2-3). A review of the record
merits no relief. See Hansley, supra.
In his second and third issues combined, Appellant argues his lifetime
registration requirement under SORNA is unconstitutional. Appellant
concedes his sentence is legal; however, he contends that imposition of an
additional lifetime registration requirement is an illegal sentence and
unconstitutional. Appellant claims the lifetime registration requirement is
not merely civil in nature because the court imposes the requirement during
sentencing, and a failure to comply can result in incarceration. Appellant
maintains the additional registration requirement exceeds the statutory
maximum penalty proscribed for his convictions. Appellant asserts the
lifetime registration requirement does not accomplish rehabilitation, and
constitutes an unusual punishment. Appellant concludes this Court should
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illegal. We disagree.
Preliminarily, we recognize that an appellant may not successfully
advance a new theory of relief for the first time on appeal. Commonwealth
v. Haughwout, 837 A.2d 480, 486 (Pa.Super. 2003) (citation omitted).
when they are not properly presented and preserved in the trial court for our
appellate rev Commonwealth v. Berryman, 649 A.2d 961, 973
Id. (citation
omitted).
In the present case, Appellant challenged the constitutionality of his
lifetime registration requirement for the first time in his Rule 1925(b)
statement. Appellant failed to raise these issues at sentencing or in a post-
arguably waived. See id.; Haughwout, supra. See generally
Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278 (Pa.Super.
2004) (reaffirming principle that defendant cannot rectify failure to preserve
issue at trial by proffering it in Rule 1925(b) statement).
Moreover, the trial court disposed of these claims as follows:
The determination that a particular statute is
unconstitutional must be made by the Pennsylvania
Supreme Court only upon a very clear showing that the
statute or sentencing provision is not within constitutional
parameters, since constitutionality is presumed.
Nevertheless, the claim of unconstitutionality is waived in
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that [Appellant] did not raise it in a post-sentence motion
of any type to allow this [c]ourt to address it.
[T]his [c]ourt hereby acknowledges the very recent
holding in Commonwealth v. Neiman, 84 A.3d 603 (Pa.
2013), which declared Act 152 of 2004, 42 Pa.C.S. § 101-
9913, unconstitutional as violative of Article III, Section 3,
of the Pennsylvania State Constitution, because it
legislatively enacted law for many separate and disparate
subjects. The Pennsylvania Supreme Court then
therein were not severable so as to continue in effect. This
[c]ourt notes that the Pennsylvania legislature had already
-enact the
compliance with the federal Adam Walsh requirements so
as [to] better protect the citizens of this Commonwealth.
Law III, are now unconstitutional, the reasons for such
and/or any of its requirements. The current statute is now
its own terms, is retroactive. The appellate courts have
previously determined that the registration requirements
serve the important purpose of protecting the citizens of
this Commonwealth from a certain class of offender those
sexual predators who commit a predicate offense and who
also suffer from a volitional impairment that makes them
likely to become recidivists. The Pennsylvania Supreme
Court more recently reiterated that the registration
requirements are not an ex post facto violation under the
United States Constitution, because they do not punish the
promptly to re-enact the registration requirements of
aw, and has now expressly stated that the
protection.
(Trial Court Opinion at 3-5) (footnotes and some citations omitted). We
accept this reasoning and see no reason to disturb the trial cour
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to deny relief. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2014
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