IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
LEROY SPANN, : No. 71 MAP 2016
:
Appellant : Appeal from the Order of the
: Commonwealth Court at No. 728 MD
: 2012 dated June 9, 2016.
v. :
:
:
PENNSYLVANIA BOARD OF :
PROBATION AND PAROLE AND :
PENNSYLVANIA STATE POLICE, :
:
Appellees :
CONCURRING STATEMENT
JUSTICE MUNDY FILED: August 16, 2017
I agree that in light of this Court’s recent decision in Commonwealth v. Muniz,
___ A.3d ___, 2017 WL 3173066 (Pa. July 19, 2017), the Commonwealth Court erred in
rejecting Appellant’s argument that SORNA is an ex post facto law.1 However, if I were
writing on a blank slate, I would conclude that SORNA does not violate the Ex Post
Facto Clauses of the Federal and Pennsylvania Constitutions.
I have previously expressed my views in this area in Commonwealth v. Perez, 97
A.3d 747 (Pa. Super. 2014). Therein, the Superior Court balanced the factors
articulated under Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). The panel
concluded that SORNA’s requirement that an offender appear physically in person to
regularly update his or her information was “an affirmative restraint,” weighing in favor of
1
I did not participate in Muniz, which was argued with Commonwealth v. Gilbert, 48
MAP 2016, a case in which I participated on the Superior Court.
concluding SORNA was punitive, and therefore an ex post facto law. Perez, 97 A.3d at
754. However, the court also concluded that the other six factors did not weigh in favor
of concluding SORNA was punitive. See id. 754-58. Balancing these factors, Perez
concluded that SORNA was not punitive, and therefore not an ex post facto law under
the Federal Constitution.2 Id. at 758-59.
I continue to believe that Perez was correctly decided and struck the proper
balance under controlling cases from the Supreme Court of the United States. I
therefore disagree with Muniz’s conclusion that SORNA violates the Ex Post Facto
Clause of the Federal Constitution. Even assuming that Muniz’s federal constitutional
analysis was correct, its analysis should have properly ended there, since any claim
under the Pennsylvania Constitution is moot. See generally Pap’s A.M. v. City of Erie,
719 A.2d 273, 281 n.12 (Pa. 1998) (concluding that since a local ordinance violated the
First Amendment of the Federal Constitution, there was no need to consider whether
the ordinance also violated the Pennsylvania Constitution), rev’d, 529 U.S. 277 (2000).
Since the Court decided to reach that argument, I agree with Justice Wecht that the Ex
Post Facto Clause of the Pennsylvania Constitution does not provide higher protections
than its federal counterpart. See Muniz, 2017 WL 3173066, at *26-33 (Wecht, J.,
concurring).
Although I disagree with Muniz’s conclusions, they are now the law of this
Commonwealth. As such, they must be applied in a meaningful way. No sensible
reading of Muniz would permit the Commonwealth Court’s contrary judgment to stand. I
2
The panel did not address Perez’s claim under the Pennsylvania Constitution, due to
his failure to conduct an analysis pursuant to Commonwealth v. Edmunds, 586 A.2d
887 (Pa. 1991) in his brief. See Perez, 97 A.3d at 759-60.
2
therefore join the Court’s order in this case, because it correctly applies Muniz and
reverses the Commonwealth Court’s order in this regard.
3