Com. v. Bricker, D.

J-S62040-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

DAVID BRICKER

Appellant No. 849 WDA 2015

Appeal from the Judgment of Sentence May 13, 2015
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000835-2014

BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 23, 2018

Appellant, David Bricker, is before us upon remand from the

Pennsylvania Supreme Court with regard to his appeal from the judgment of

sentence entered in the Fayette County Court of Common Pleas, following

his jury trial convictions of unlawful contact with a minor—sexual offenses,

indecent assault—victim less than sixteen (16) years of age, and

harassment.1 We remand for resentencing.

The trial court summarized the relevant facts and procedural history of

this case as follows:

In October of 2013, …the minor victim, met Appellant
David Bricker through her neighbor, [L.R.], who was dating
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1 18 Pa.C.S.A. §§ 6318(a)(1), 3126(a)(8), and 2709(a)(1), respectively.

_____________________________

*Retired Senior Judge assigned to the Superior Court.
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Appellant at the time. [L.R.] knew Appellant as David
Kennedy and introduced him to the victim as such. After
they met, Appellant and the victim started communicating
with each other. Their communications took many forms,
whether it was in person or electronically. The victim
testified she obtained Appellant’s online contact
information from Appellant so they could communicate
with each other over the internet. She testified they would
communicate online “every once in a while” and the
content of the conversations included things only the two
of them knew about. Specifically, [the victim] testified
[Appellant] would tell her he wanted to be with her and he
wanted to marry her.

One afternoon in November of 2013, [L.R.] and Appellant
asked the victim and her brother…to help clean [L.R.’s]
attic. Appellant, the victim, and her brother were cleaning
the attic; [L.R.] only came up to the attic periodically.
While they were cleaning the attic, Appellant on several
occasions asked the victim’s brother to take chairs
downstairs, leaving the victim and Appellant alone in the
attic.

While Appellant was alone in the attic with the victim, he
told her that he loved her and not to tell anyone.
Appellant also kissed the victim on the lips and grabbed
and squeezed her buttocks. This was corroborated by the
victim’s brother, who testified that before he went
downstairs, he saw Appellant kiss his sister on the lips and
[grab] her buttocks.

About a month later, Patrick Ruff, a Connellsville City
Police Officer, was notified that the victim’s father found
messages between Appellant and the victim. The case was
initially reported to Officer Ruff regarding a person named
David Kennedy; however, throughout his investigation,
Officer Ruff ascertained David Kennedy’s real name to be
David Allen Bricker. Officer Ruff also determined [the
victim’s] date of birth…and Appellant’s date of birth….
Therefore, the child victim was fifteen (15) years of age
and [Appellant] was fifty-one (51) years of age at the time
of the offense.

(Trial Court Opinion, filed July 27, 2015, at 2-4) (internal footnote and

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citations to record omitted). At the beginning of Appellant’s trial, defense

counsel filed an oral motion in limine to exclude any alleged text messages,

emails, or internet messages between Appellant and the victim, as well as

any related testimony. Defense counsel argued the Commonwealth had not

properly authenticated that Appellant had sent any of the messages. The

court denied the motion.

On February 5, 2015, a jury convicted Appellant of unlawful contact

with a minor—sexual offenses, indecent assault—victim less than 16 years of

age, and harassment. That same day, the court sentenced Appellant to an

aggregate term of three and one-half (3½) to seven (7) years’

imprisonment. The court also deemed Appellant to be a sexually violent

predator (“SVP”), which subjected Appellant to a lifetime registration under

the Sex Offender Registration and Notification Act (“SORNA”).2 Appellant

timely filed a post-sentence motion, which the court denied on May 18,

2015. On May 27, 2015, Appellant timely filed a notice of appeal. The court

ordered Appellant, on May 28, 2015, to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely

complied on May 29, 2015.

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2 SORNA, at 42 Pa.C.S.A. §§ 9799.10-9799.41, became effective on
December 20, 2012, before the commission of these offenses in 2013.
SORNA replaced Megan’s Law as the statute governing the registration and
supervision of sex offenders. SORNA was recently amended by H.B. 631,
202 Gen. Assem., Reg. Sess. (Pa. 2018), Act 10 of 2018.

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On appeal, Appellant challenged: (1) the trial court’s denial of

Appellant’s motion in limine to exclude emails and text messages, which

Appellant purportedly authored to the victim and all testimony concerning

those emails and text messages; (2) the sufficiency of the Commonwealth’s

evidence to prove beyond a reasonable doubt that Appellant intentionally

contacted the victim for the purpose of engaging in activity prohibited under

the crimes code; (3) the sufficiency of the Commonwealth’s evidence to

prove beyond a reasonable doubt that Appellant had indecent contact with

the victim, as defined pursuant to 18 Pa.C.S.A. § 3101; and (4) the court’s

sentence as excessive and unconstitutional.

Regarding Appellant’s issues one through three, this Court initially

affirmed based on the trial court opinion. (See Trial Court Opinion at 6-9)

(finding: (1) Commonwealth did not admit any physical evidence regarding

electronic communications between victim and Appellant; mention of

communications came only from victim’s testimony that Appellant had sent

her electronic messages; (2) Appellant had contact with victim on multiple

occasions, including when Appellant communicated with her through internet

messaging and when Appellant kissed her on her lips and grabbed and

squeezed her buttocks, while they were both in L.R.’s attic in November

2013; Appellant’s electronic and physical contact with victim was intentional;

victim testified she received Appellant’s online information directly from

Appellant; Appellant would not have given victim information if Appellant

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had no intent to communicate with victim; regardless of who created online

account, act of getting on computer, signing into account, and

communicating with victim was evidence of Appellant’s intent to contact her;

victim was 15 year-old minor; she testified that content of internet

messaging included how Appellant wanted to be with her and marry her;

Commonwealth established electronic communication was for purpose of

engaging in sexual contact with victim; Appellant made victim’s brother take

chairs from attic down to basement, leaving Appellant alone with victim; jury

could reasonably conclude Appellant’s actions were for purpose of engaging

in sexual contact with victim; Commonwealth satisfied its burden; (3) victim

testified Appellant kissed her on her lips and grabbed and squeezed her

buttocks; victim’s brother testified that he saw Appellant kiss victim and

grab her buttocks; lips and buttocks are sexual or intimate parts of body;

jury reasonably concluded that electronic communication and physical

contact were for purpose of arousing or gratifying Appellant’s sexual desire).

The record supported the court’s decision to deny relief on issues one

through three. Thus, we saw no reason to disturb that decision.

Regarding Appellant’s excessiveness challenge to the discretionary

aspects of sentencing, the trial court explained:

Appellant was convicted of Unlawful Contact with a Minor,
Indecent Assault, Person Less Than 16 Years of Age, and
Harassment. Appellant was thereafter sentenced on the
Unlawful Contact with a Minor conviction to a term of
imprisonment of not less than 3½ years nor more than 7
years. Appellant’s sentence did not exceed the statutory

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maximum. Unlawful Contact with a Minor is a felony of the
third degree, which carries with it a maximum of seven
years. 18 Pa.C.S. § 1103(3). Appellant was sentenced up
to seven years, falling within the maximum sentence.

Under the provisions of the Pennsylvania Sentencing
Guidelines, Unlawful Contact with a Minor carries with it an
offense gravity score of six. Taking into consideration
Appellant’s prior record score of four, the guidelines called
for a standard range minimum of 15 to 21 months, an
aggravated range minimum of 21 to 27 months, and a
mitigated range minimum of 9 to 15 months. The
sentence imposed by the [c]ourt of not less than 3½ years
nor more than 7 years fell above the aggravated range.

Although Appellant’s sentence fell outside the guidelines,
his sentence was appropriate. The sentencing guidelines,
though important, are only one factor, and they do not
create a presumption. Commonwealth v. Walls, 592 Pa.
557, 575, 926 A.2d 957, 967 (2007). Thus, the guidelines
are merely advisory and not binding on the [c]ourt.
Commonwealth v. Feucht, 955 A.2d 377, 383
(Pa.Super. 2008). It is only required that the [c]ourt
provide a contemporaneous written statement if it deviates
from the guidelines. Id.

When a sentencing court deviates from the sentencing
guidelines, it is important that the [c]ourt reflect a
consideration of the sentencing guidelines, the background
and character of the defendant, the circumstances of the
crime, and impose a sentence that is consistent with the
protection of the public and the rehabilitative needs of the
defendant. Commonwealth v. Hoch, 936 A.2d 515
(Pa.Super. 2007). Following the imposition of sentence,
the [c]ourt placed on the record the reason why it
departed from the sentencing guidelines.

As a departure, the [c]ourt, having imposed this
sentence above the aggravated sentencing guideline
range, has done so due to the serious nature of this
offense, the prior Allegheny County rape conviction,
[Appellant’s] complete lack of remorse, the age of
the victim at fifteen at the time of the offense and
the age of [Appellant] at fifty-one.

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[Appellant], we’ve taken into consideration the
nature of this offense, the seriousness of unlawful
contact with a minor, a felony of the third degree,
punishable by a term of imprisonment of up to seven
years and a fine of up to $15,000.00. We’ve
considered the number of offenses to which you've
been found guilty and we’ve reviewed a presentence
report, considered your prior record, taken into
consideration your rehabilitative needs and the
gravity of this offense and we feel a lesser sentence
would depreciate from the seriousness of this crime
and we feel you are in need of correctional treatment
that can be provided most effectively by your
commitment to an institution.

Sentencing Transcript (pp. 18-19).

The [c]ourt considered the nature and gravity of the
offense, the statutory limit of incarceration, the
Pennsylvania Sentencing Guidelines, and the presentence
report.[3] The reasoning of the [c]ourt as set forth in the
sentence colloquy adequately supports the sentence
imposed against Appellant. Therefore, Appellant’s final
issue is without merit.

(Trial Court Opinion at 10-12). We accepted this reasoning and decided that

Appellant’s preserved discretionary aspects of sentencing issue merited no

relief on appeal.

Likewise, we rejected Appellant’s new claim, raised for the first time

on appeal, that his lifetime registration requirement under SORNA was

unconstitutional because the registration requirements violated the
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3 Where a sentencing court had the benefit of a post-sentence investigative
report, the law presumes the court was aware of and weighed the relevant
information regarding the defendant’s character and mitigating factors. See
Commonwealth v. Tirado, 870 A.2d 362 (Pa.Super. 2005).

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Pennsylvania and United States Constitutions’ prohibition against cruel and

unusual punishment. We based our decision primarily on the fact that

Appellant was raising this particular constitutional challenge for the first time

on appeal as a new theory of sentencing relief. We cited Commonwealth

v. Haughwout, 837 A.2d 480, 486 (Pa.Super. 2003) (stating appellant may

not successfully advance new theory of relief for first time on appeal) and

said:

“An appellate court should not address constitutional
issues unnecessarily or when they are not properly
presented and preserved in the trial court for our appellate
review.” Commonwealth v. Berryman, 649 A.2d 961,
973 (Pa.Super. 1994) (citation omitted). Here, Appellant
challenges the constitutionality of his lifetime registration
requirement for the first time in his brief. Appellant failed
to raise this claim at sentencing, in a post-sentence
motion, or in his Rule 1925(b) statement. Therefore,
Appellant’s claim is waived. See id.; Haughwout, supra.

Commonwealth v. Bricker, No. 849 WDA 2015, unpublished

memorandum at 15 (Pa.Super. filed December 29, 2015). Consistent with

the prevailing, interpretive legal precedent, we continued:

Moreover, even if properly preserved, Appellant’s challenge
to the constitutionality of his lifetime registration
requirement would merit no relief as Pennsylvania law
states that the registration requirements under SORNA do
not constitute criminal punishment. See Commonwealth
v. McDonough, 96 A.3d 1067 (Pa.Super. 2014) (rejecting
argument that SORNA unconstitutionally required
defendant to register for period that exceeded statutory
maximum sentence for associated crime; stating SORNA
registration requirements are product of remedial
legislation with non-punitive goal of public safety).

(Id.) Accordingly, we affirmed the judgment of sentence.

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Appellant timely filed a petition for allowance of appeal with our

Supreme Court on January 6, 2016. In his petition, he asserted two reasons

for allowance of appeal: (1) the trial court erred in denying Appellant’s

motion in limine to exclude electronic messages purportedly authored by

Appellant to victim and all testimony concerning those messages; and (2)

the sentencing court imposed a harsh, severe, and manifestly unreasonable

and excessive sentence in light of the circumstances surrounding the alleged

incident. (See Appellant’s Petition for Allowance of Appeal, filed 1/6/16, at

9-19.) Appellant’s sentencing issue focused primarily on the court’s

deviation from the sentencing guidelines, as having been based solely on

factors, such as the seriousness of the offense, Appellant’s prior record

score, Appellant’s lack of remorse and the ages of those involved, which the

guidelines already incorporated. In addition, Appellant complained he is now

required to register as a sexually violent predator for the rest of his life,

which Appellant contended was an additional sentence that was both illegal

and unconstitutional. The root of his argument in the Supreme Court

petition was that the trial court should not be imposing “civil” penalties at

sentencing.

Further, Appellant stated any failure to comply with the SORNA

registration requirements could result in criminal penalties, including

additional incarceration, which is the very definition of a “criminal violation.”

Appellant also simply declared the additional lifetime registration was illegal

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because it exceeded the statutory maximum penalty of seven years for the

underlying conviction. Based on his conclusion that the SORNA registration

requirements are punitive, Appellant then announced the registration

requirements constituted cruel and unusual punishment in violation of the

Pennsylvania and United States constitutions. Appellant concluded his

lifetime registration period was manifestly unreasonable, excessive, and

unconstitutional.

By order of January 3, 2018, the Supreme Court granted Appellant an

allowance of appeal limited to the following issue:

Did the sentencing court impose a harsh, severe, and
manifestly unreasonable and excessive sentence in light of
the circumstances surrounding the alleged incident?

(See Supreme Court Order, dated January 3, 2018, at 1.) The Supreme

Court order succinctly directed: “The judgment of sentence is VACATED, and

the case is REMANDED to the Superior Court for reconsideration in light of

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).” (Id.) The

Supreme Court granted no other relief and provided no further direction.

Accordingly, this case is now before us for review of Appellant’s sentencing

issue per Muniz.

The Supreme Court’s decision in Muniz leaves no doubt that the

SORNA registration requirements constitute criminal punishment. See id.

In light of Muniz, this Court later specifically held that the SVP designation

process under SORNA is constitutionally flawed. Commonwealth v.

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Butler, 173 A.3d 1212, 1215 (Pa.Super. 2017).4 In assessing the

implications of Muniz, the Butler Court reasoned:

Apprendi and Alleyne apply to all types of punishment,
not just imprisonment. See S. Union Co. v. United
States, 567 U.S. 343, 346–360, 132 S.Ct. 2344, 183
L.Ed.2d 318 (2012). Thus, as our Supreme Court has
stated, if registration requirements are punishment, then
the facts leading to registration requirements need to be
found by the fact-finder chosen by the defendant, be it a
judge or a jury, beyond a reasonable doubt. …

We recognize that our Supreme Court did not consider the
ramifications of its decision in Muniz with respect to
individuals designated as SVPs for crimes committed after
SORNA’s effective date. Nonetheless, our Supreme Court’s
holding that registration requirements under SORNA
constitute a form of criminal punishment is dispositive of
the issue presented in this case. In other words, since our
Supreme Court has held that SORNA registration
requirements are punitive or a criminal penalty to which
individuals are exposed, then under Apprendi and
Alleyne, a factual finding, such as whether a defendant
has a “mental abnormality or personality disorder that
makes [him…] likely to engage in predatory sexually
violent offenses [,]” 42 Pa.C.S.A. § 9799.12, that increases
the length of registration must be found beyond a
reasonable doubt by the chosen fact-finder. Section
9799.24(e)(3) identifies the trial court as the finder of fact
in all instances and specifies clear and convincing evidence
as the burden of proof required to designate a convicted
defendant as an SVP. Such a statutory scheme in the
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4 In Butler, the defendant challenged his SVP designation on appeal as
unconstitutional because it violated his fundamental right to protect his
reputation, under the Pennsylvania Constitution. The Butler Court,
however, sua sponte focused only on the SVP designation process as leading
to an illegal sentence, under Apprendi v. New Jersey, 530 U.S. 466, 120
S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Alleyne v. United States, 570
U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), without addressing the
constitutional question presented.

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criminal context cannot withstand constitutional scrutiny.
Accordingly, …section 9799.24(e)(3) is unconstitutional
and Appellant’s judgment of sentence, to the extent it
required him to register as an SVP for life, was illegal.

* * *

In sum, we are constrained to hold that section
9799.24(e)(3) of SORNA violates the federal and state
constitutions because it increases the criminal penalty to
which a defendant is exposed without the chosen fact-
finder making the necessary factual findings beyond a
reasonable doubt. …

Id. at 1217-18. Given Muniz’s declaration on the punitive nature of the

SORNA registration requirements generally, Appellant’s SVP designation is

part of the sentence the Supreme Court has already vacated.

Appellant’s convictions are not in question at this time. The Supreme

Court vacated the judgment of sentence and sent the case back to this Court

solely to review the sentence under Muniz. Appellant committed his

offenses in 2013, after the effective date of SORNA, so his case presents no

clear ex post facto violation under Muniz by applying SORNA to his

convictions.5 We therefore remand the case to the trial court to resentence

Appellant including his SORNA registration obligations. At resentencing,

Appellant shall have the appropriate full and fair opportunity to raise,

develop, argue, and preserve his constitutional challenges to his new

reporting requirements. Those grounds Appellant has identified, but failed
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5 Muniz did not address the constitutional challenges Appellant generally
alludes to on appeal, without full and proper preservation or development.

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to develop on this current appeal, may include: (1) are the SORNA reporting

requirements an unconstitutional extension of the statutory maximum

sentence for the underlying offense(s);6 (2) are the SORNA reporting

requirements cruel and unusual punishment; plus (3) any other basis

Appellant can reasonably support to contest the new sentence. We decline

to make those arguments for Appellant here. See, e.g., Commonwealth

v. Hardy, 918 A.2d 766, 771 (Pa.Super. 2007), appeal denied, 596 Pa. 703,

940 A.2d 362 (2008) (reiterating general principle that appellate court will

not act as counsel for appellant and develop arguments on appellant’s

behalf); Commonwealth v. Gould, 912 A.2d 869, 873 (Pa.Super. 2006)

(declining to address equal protection challenge to judgment of sentence

because appellant failed to develop issue fully in his appellate brief).

Accordingly, we remand for resentencing. At resentencing, Appellant

should be subject to resentencing under the law, including that version of

the SORNA registration requirements in effect at the time he committed the

offenses which led to his convictions. To apply SORNA, as amended under

H.B. 631, 202 Gen. Assem., Reg. Sess. (Pa. 2018), Act 10 of 2018, to

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6 See, e.g., Apprendi, supra, Alleyne, supra, and Commonwealth v.
Aponte, 576 Pa. 246, 855 A.2d 800, 811 (2004) (stating: “[I]n cases where
the fact which increases the maximum penalty is not a prior conviction and
requires a subjective assessment, anything less than proof beyond a
reasonable doubt before a jury violates due process. Additionally, any
judicial finding which results in punishment beyond the statutory maximum
must be submitted to a jury and proven beyond a reasonable doubt”).

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Appellant’s resentencing would violate the ex post facto prohibition against

inflicting a greater punishment than the law annexed to the offenses when

he committed them, if the mandatory three-year probationary tail associated

with Section 9799.14(d) applies to him. See generally Commonwealth v.

Rose, 633 Pa. 659, 127 A.3d 794 (2015) (stating penal law is ex post facto

if (1) it is applied to events occurring before its enactment and (2) it

disadvantages offender affected by it; holding statute in effect when

defendant committed assault controlled his resentencing for third degree

murder, after victim succumbed to injuries she sustained in assault, 14

years after assault, rather than sentencing statute in effect at time of death

of victim). Compare Commonwealth v. McGarry, 172 A.3d 60 (Pa.Super.

2017) (explaining how court properly applied amended DUI sentencing

statute to defendant’s sentence, where he committed his offenses after

legislature had adopted amendments to DUI statute, and court imposed

sentence after effective date of amendment and in compliance with statute

that required court to apply amendments for any sentence it imposed after

effective date of amendment). Here, Appellant committed his offenses in

2013, under the prior version of SORNA, so that version should apply at

resentencing.

Case remanded for resentencing. Jurisdiction is relinquished.

Judge Jenkins did not participate in the consideration or decision of

this case.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/23/2018

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