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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
KEVIN GENE PRITTS
Appellant No. 900 WDA 2017
Appeal from the Judgment of Sentence imposed January 17, 2017
In the Court of Common Pleas of Westmoreland County
Criminal Division at No.: CP-65-CR-0002086-2014
BEFORE: STABILE, MUSMANNO, JJ., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY STABILE, J.: FILED JUNE 18, 2018
Appellant Kevin Gene Pritts appeals from the judgment of sentence
entered in the Court of Common Pleas of Westmoreland County (“trial court”),
following his jury convictions for multiple sex crimes against a child under the
age of thirteen. Upon review, we affirm Appellant’s convictions, but reverse
his sexually violent predator (“SVP”) designation and remand for the sole
purpose of having the trial court issue the appropriate notice under 42
Pa.C.S.A. § 9799.23 as to Appellant’s registration requirements.
On March 17, 2016, a jury found Appellant guilty of two counts of
involuntary deviate sexual intercourse with a child, two counts of indecent
assault of a child, endangering the welfare of children, and corruption of
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minors.1 Pursuant to the Sexual Offender Registration and Notification Act
(“SORNA”), the trial court ordered the Sexual Offender Assessment Board
(“SOAB”) to evaluate whether Appellant met the criteria for designation as an
SVP and deferred sentencing pending the completion of the evaluation. On
January 17, 2017, following a hearing, the trial court found that Appellant met
the criteria for an SVP designation. On the same day, the trial court sentenced
Appellant to an aggregate term of ten to twenty years’ imprisonment followed
by five years of probation. Appellant timely filed post-sentence motions,
which the trial court denied. Appellant appealed to this Court. The trial court
did not direct Appellant to file a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal.
On appeal, Appellant raises two issues for our review:
[I.] Is [Appellant] entitled to have his SVP determination vacated
pursuant to Commonwealth v. Butler, 173 A.3d 1212 (Pa.
Super. 2017)?
[II.] Does the use of a sexual assault expert witness under 42
Pa.C.S.A. § 5920 violate [Appellant’s] rights to a fair trial, due
process, and confrontation?
Appellant’s Brief at 6.
We first address Appellant’s argument challenging his SVP designation.
Briefly, on July 17, 2017, our Supreme Court held in Commonwealth v.
Muniz, 164 A.3d 1189 (Pa. 2017), cert. denied, 138 S. Ct. 925 (2018), that
SORNA’s registration provisions constitute punishment, and, therefore, the
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1 18 Pa.C.S.A. §§ 3123(b), 3126(a)(7), 4304(A), and 6301(a)(1)(ii),
respectively.
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retroactive application of those provisions violates the ex post facto clauses of
the federal and Pennsylvania constitutions. A few months later, a panel of
this Court issued Butler acknowledging that “Muniz was a sea change in the
longstanding law of this Commonwealth as it determined that the registration
requirements under SORNA are not civil in nature but a criminal punishment.”
Butler, 173 A.3d at 1215. As such, the panel concluded that the statutory
mechanism for designating a defendant as an SVP set forth in 42 Pa.C.S.A. §
9799.24(e)(3), which permits a trial court to make the determination based
upon clear and convincing evidence, was “constitutionally flawed” pursuant to
the United States Supreme Court’s decisions in Alleyne v. United States,
570 U.S. 99 (2013) and Apprendi v. New Jersey, 530 U.S. 466 (2000). In
Alleyne, the United States Supreme Court held that any fact that increases
the mandatory minimum sentence of a crime is an element that must be
submitted to a jury and proved beyond a reasonable doubt. In Apprendi, the
Court held that any fact, other than a prior conviction, that increases the
penalty of a crime beyond the statutory maximum must be submitted to a
jury and proved beyond a reasonable doubt. The Butler Court, therefore,
held that “[T]rial courts cannot designate convicted defendants SVPs (nor may
they hold SVP hearings) until our General Assembly enacts a constitutional
designation mechanism.” Butler, 173 A.3d at 1218. Accordingly, the panel
vacated the order designating the defendant as an SVP, and remanded the
case to the trial court to issue the appropriate notice under Section 9799.23
of SORNA as to the defendant’s registration obligations.
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Here, as stated, Appellant’s first argument challenges his designation as
an SVP under our recent decision Butler, the facts of which are
indistinguishable from this case. Thus, consistent with Butler, we are
constrained to reverse Appellant’s SVP designation and remand this case to
the trial court to issue a proper notice under Section 9799.23 of SORNA.
Appellant next challenges 42 Pa.C.S.A. § 5920, claiming it violates his
“constitutional rights to a fair trial, due process, and confrontation.”
Appellant’s Brief at 11. In so doing, Appellant seeks a backdoor approach to
exclude the trial testimony of the Commonwealth’s expert Carol Hughes, a
licensed psychologist. N.T. Trial, 3/16/16, at 242.
Section 5920 provides:
(a) Scope.--This section applies to all of the following:
(1) A criminal proceeding for an offense for which
registration is required under Subchapter H of Chapter 97
(relating to registration of sexual offenders).
(2) A criminal proceeding for an offense under 18 Pa.C.S.
Ch. 31 (relating to sexual offenses).
(b) Qualifications and use of experts.--
(1) In a criminal proceeding subject to this section, a
witness may be qualified by the court as an expert if the
witness has specialized knowledge beyond that possessed
by the average layperson based on the witness's experience
with, or specialized training or education in, criminal justice,
behavioral sciences or victim services issues, related to
sexual violence, that will assist the trier of fact in
understanding the dynamics of sexual violence, victim
responses to sexual violence and the impact of sexual
violence on victims during and after being assaulted.
(2) If qualified as an expert, the witness may testify to facts
and opinions regarding specific types of victim responses
and victim behaviors.
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(3) The witness’s opinion regarding the credibility of any
other witness, including the victim, shall not be admissible.
(4) A witness qualified by the court as an expert under this
section may be called by the attorney for the
Commonwealth or the defendant to provide the expert
testimony.
42 Pa.C.S.A. § 5920 (footnote omitted).
Instantly, based on our review of the record, it appears that Appellant
failed to challenge the constitutionality of Section 5920 in the trial court. 2 See
Commonwealth v. Santiago, 980 A.2d 659, 666 (Pa. Super. 2009)
(explaining that even claims of constitutional dimension are waived “if not
raised in the trial court”) (citations omitted), appeal denied, 991 A.2d 312
(Pa. 2010); see also Pa.R.A.P. 302(a) (“Issues not raised in the lower court
are waived and cannot be raised for the first time on appeal.”). Indeed,
instead of challenging the testimony of Ms. Hughes under Section 5920,
Appellant specially acquiesced to the trial court’s acceptance of Ms. Hughes as
an expert under Section 5920. N.T. Trial, 3/16/16, at 246, 248. Accordingly,
Appellant’s second issue is waived.
Order reversed. Judgment of sentence affirmed in all other respects.
Case remanded. Jurisdiction relinquished.
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2 Appellant also fails to cite to the place in the record where this claim was
preserved before the trial court. See Pa.R.A.P. 2117(c) and 2119(e) see also
Commonwealth v. Fransen, 42 A.3d 1100, 1106 n. 11 (Pa. Super. 2012)
(en banc) (“Failing to direct this Court to specific portions of the record in
support of an argument violates Pa.R.A.P. 2119(c) [and for] that reason alone,
we could conclude this issue is waived.”), appeal denied, 621 Pa. 682, 76
A.3d 538 (2013).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/18/2018
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