J-S42038-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JERRY NEGRON, :
:
Appellant : No. 66 MDA 2018
Appeal from the Judgment of Sentence October 26, 2017
in the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0005100-2016
BEFORE: BOWES, MCLAUGHLIN, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 02, 2018
Jerry Negron (Appellant) appeals from the October 26, 2017 judgment
of sentence entered after a jury found him guilty of two counts of
involuntary deviate sexual intercourse (IDSI), three counts of indecent
exposure, six counts of corruption of minors, and one count each of sexual
assault, aggravated indecent assault, and indecent assault. Upon review, we
affirm in part, vacate in part, and remand for proceedings consistent with
this memorandum.
We begin with a brief procedural history. Appellant was charged with
three counts of IDSI, two counts of aggravated indecent assault, two counts
of indecent assault, seven counts of corruption of minors, four counts of
indecent exposure, and one count of sexual assault for numerous incidents
*Retired Senior Judge assigned to the Superior Court.
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involving three of Appellant’s nieces, K.T., L.T., and Y.T., which occurred
between January 1, 2005, and December 31, 2015.
Several pre-trial motions were filed, including two motions in limine.
The Commonwealth filed a motion in limine on May 25, 2017, seeking, inter
alia, to prohibit Appellant from eliciting testimony from any witness
regarding sexual abuse allegations made by the victims against other
individuals. Appellant responded with his own motion in limine on June 1,
2017, seeking access to Berks County Children and Youth Services Agency
(CYS) records containing reports of the victims’ prior, unfounded claims of
sexual abuse against other individuals, including the names of the accused.
On June 2, 2017, the trial court held a hearing on the two motions in
limine.1 On June 5, 2017, the trial court issued an order that, inter alia,
prohibited Appellant from eliciting testimony from any witness about
allegations of sexual abuse made by the victims against other individuals,
and denied Appellant’s request for the identities 2 of the individuals alleged to
have also been accused of sexual abuse by the victims.
Appellant proceeded to a jury trial, after which he was found guilty as
detailed above. On October 26, 2017, Appellant was found to be a sexually
1 Appellant failed to include a copy of this transcript in the certified record.
2 In his brief on appeal, Appellant states that the names of the accused had
been disclosed via other discovery materials. Appellant states that he
sought the reports because he wanted information regarding the outcome of
any CYS investigations into the allegations. See Appellant’s Brief at 28.
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violent predator (SVP) pursuant to 42 Pa.C.S. § 9799.24, and was sentenced
to an aggregate term of 28 to 71 years of incarceration, followed by 15
years of special probation. Due to Appellant’s convictions and SVP
designation, he was subject to the provisions of Pennsylvania’s Sex Offender
Registration and Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10-9799.42,
and is required to register for his lifetime as a sex offender.
On November 6, 2017, Appellant filed a post-sentence motion, along
with a petition to file an amended post-sentence motion upon receipt of the
jury trial and sentencing hearing transcripts. That same day, the trial court
granted the petition to amend the post-sentence motion within 30 days of
the filing of the requested transcripts. Nonetheless, the trial court denied
Appellant’s post-sentence motion by order entered on November 15, 2017.
Subsequently, following receipt of the transcripts, Appellant filed a second
post-sentence motion on December 15, 2017,3 which the trial court denied
on December 20, 2017.
On January 8, 2018, Appellant filed the instant notice of appeal.4 On
appeal, Appellant presents the following issues for our review.
A. Whether the trial court abused its discretion when it denied
Appellant’s motion in limine prohibiting Appellant from
entering evidence regarding witnesses’ allegations of abuse
against another individual when these allegations were
3 This was purportedly Appellant’s amended post-sentence motion.
4 Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
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reported simultaneously with the allegations made against
Appellant[.]
B. Whether the trial court erred as a matter of law, abused its
discretion and violated general sentencing principles when the
trial court imposed an aggregate sentence of 28 years to 71
years of incarceration at a state facility, followed by 15 years
of special probation, when the Appellant had no criminal
history and a prior record score of zero[.]
C. Whether the trial court erred as a matter of law by
designating Appellant a[n SVP] and illegally enhancing his
sentence[.]
Appellant’s Brief at 12 (unnecessary capitalization, suggested answers, and
footnote omitted).
Before we reach the merits of Appellant’s claims, we must determine
whether this appeal is properly before us. See Commonwealth v. Harris,
114 A.3d 1, 6 (Pa. Super. 2015) (holding that “we may sua sponte consider
whether we have jurisdiction to consider the merits of the claims
presented”).
Here, Appellant timely filed a post-sentence motion on November 6,
2017.5 On the same date, Appellant requested permission to file a
5 A defendant must file a post-sentence motion within ten days of the
judgment of sentence. Pa.R.Crim.P. 720(A)(1). Ten days after October 16,
2017, was Sunday, November 5, 2017. Thus, Appellant timely filed his post-
sentence motion on Monday, November 6, 2017. See 1 Pa.C.S. § 1908
(“Whenever the last day of any such period shall fall on Saturday or Sunday,
… such day shall be omitted from the computation.”).
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supplemental post-sentence motion, as permitted by Rule 720(B)(1)(b),6
and the trial court exercised its discretion in granting Appellant the right to
do so. Nonetheless, instead of waiting for Appellant to file a supplemental
post-sentence motion, and then deciding the consolidated7 post-sentence
motions within the time-frame permitted by Rule 720(B)(3),8 the trial court
6 “The defendant may file a supplemental post-sentence motion in the
judge’s discretion as long as the decision on the supplemental motion can be
made in compliance with the time limits of paragraph (B)(3).” Pa.R.Crim. P.
720(B)(1)(b).
7 “The defendant in a court case shall have the right to make a post-
sentence motion. All requests for relief from the trial court shall be stated
with specificity and particularity, and shall be consolidated in the post-
sentence motion[.]” Pa.R.Crim.P. 720(B)(1)(a).
8 Rule 720 provides in pertinent part:
(3) Time Limits for Decision on Motion. The judge shall not
vacate sentence pending decision on the post-sentence motion,
but shall decide the motion as provided in this paragraph.
(a) Except as provided in paragraph (B)(3)(b), the judge
shall decide the post-sentence motion, including any
supplemental motion, within 120 days of the filing of the
motion. If the judge fails to decide the motion within 120
days, or to grant an extension as provided in paragraph
(B)(3)(b), the motion shall be deemed denied by operation
of law.
(b) Upon motion of the defendant within the 120-day
disposition period, for good cause shown, the judge may
grant one 30-day extension for decision on the motion. If
the judge fails to decide the motion within the 30-day
extension period, the motion shall be deemed denied by
operation of law.
(Footnote Continued Next Page)
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entered an order denying Appellant’s timely-filed post-sentence motion on
November 15, 2017.
Because the trial court entered an order deciding Appellant’s post-
sentence motion, the clock began to run for filing a notice of appeal pursuant
to Rule 720(A)(2)(a)9 and the November 6, 2017 order allowing Appellant to
supplement the post-sentence was rendered moot. Therefore, Appellant had
30 days from November 15, 2017 to file a timely appeal, and the January 8,
2018 notice of appeal was untimely filed.
However, this Court may address an otherwise untimely notice of
appeal if fraud or a breakdown in the trial court’s processes caused the
untimely appeal. See Commonwealth v. Khalil, 806 A.2d 415, 420 (Pa.
Super. 2002). This Court has found that a breakdown occurs “when the trial
court or the clerk of courts depart[s] from the obligations specified in []
Rules 704 and 720 of the Pennsylvania Rules of Criminal Procedure.”
Commonwealth v. Patterson, 940 A.2d 493, 499 (Pa. Super. 2007).
Among these obligations is the requirement that an order denying a post-
sentence motion notify the defendant of, inter alia, “the right to appeal and
_______________________
(Footnote Continued)
Pa.R.Crim.P. 720(B)(3).
9 “If the defendant files a timely post-sentence motion, the notice of appeal
shall be filed… within 30 days of the entry of the order deciding the
motion[.]” Pa.R.Crim.P. 720(A)(2)(a).
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the time limits within which the appeal must be filed[.]” Pa.R.Crim.P.
720(B)(4)(a).
Here, the trial court failed to comply with Rule 720. In the November
15, 2017 order denying Appellant’s post-sentence motion, the trial court did
not notify Appellant of his right to file an appeal within 30 days of the entry
of that order. Had the trial court done so, Appellant could have timely filed a
notice of appeal from that order. Moreover, we note the confusion that the
trial court created unnecessarily by granting the petition to supplement
Appellant’s post-sentence motion, denying his post-sentence motion without
advising him of his right to appeal, and then considering and denying
Appellant’s supplemental post-sentence motion that was filed after the trial
court already ruled on Appellant’s post-sentence motion.10
Accordingly, we find that the trial court’s failure to comply with Rule
720 constitutes a breakdown in the court processes that excuses the
untimely filing of Appellant’s notice of appeal. See Patterson, 940 A.2d at
499. Furthermore, given the confusion that the trial court created, as stated
supra, we will consider Appellant’s post-sentence motion and amended post-
sentence motion together as if consolidated, which appears to have been the
10 We also note that if the trial court believed it was not finally deciding
Appellant’s post-sentence motion until it considered Appellant’s
supplemental post-sentence motion, the trial court still failed to comply with
Rule 720 by filing an identical order on December 20, 2017, with no mention
of Appellant’s right to file an appeal.
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intent of Appellant and the trial court. As such, we may now turn to the
merits of Appellant’s appeal.
Motion in Limine
Appellant first claims that the trial court erred in denying his motion in
limine. We consider this claim mindful of the following.
Generally, a trial court’s decision to grant or deny a motion in
limine is subject to an evidentiary abuse of discretion standard
of review. In this context,
The term “discretion” imports the exercise of
judgment, wisdom and skill so as to reach a
dispassionate conclusion, within the framework of
the law, and is not exercised for the purpose of
giving effect to the will of the judge. Discretion must
be exercised on the foundation of reason, as
opposed to prejudice, personal motivations, caprice
or arbitrary actions. Discretion is abused when the
course pursued represents not merely an error of
judgment, but where the judgment is manifestly
unreasonable or where the law is not applied or
where the record shows that the action is a result of
partiality, prejudice, bias or ill will.
Admission of evidence is within the sound discretion of
the trial court and will be reversed only upon a showing that the
trial court clearly abused its discretion. Admissibility depends on
relevance and probative value. Evidence is relevant if it logically
tends to establish a material fact in the case, tends to make a
fact at issue more or less probable or supports a reasonable
inference or presumption regarding a material fact.
Commonwealth v. Reese, 31 A.3d 708, 715–16 (Pa. Super. 2011)
(citations and quotation marks omitted).
In his pre-trial motion in limine, Appellant sought to “admit evidence
related to information of individuals whom the complaining witness(es)
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accused previously of sexual abuse and whose abuse was never
substantiated by any Commonwealth agency.” Motion in Limine, 6/1/2017,
at ¶ 8. Appellant argued that such evidence was material to the credibility
of the victims, and pursuant to Pa.R.E. 404(b)(2) was admissible as an
exception to the general rule against prior bad acts testimony, and prove the
victims’ plans to accuse falsely individuals of sexual abuse for some
unknown ulterior motives.11 Id. at ¶¶ 14-21.
In its Pa.R.A.P. 1925(a) opinion, the trial court explained its reasoning
for denying Appellant’s motion.
The Child Protective Services Law requires the
confidentiality of child abuse reports and only permits the
release of these reports to certain parties. Appellant was neither
the subject of the CYS information he sought to obtain nor an
enumerated person or agency listed in 23 Pa.C.S.[] § 6340 and,
as a result, requested relief from th[e trial] court to obtain
confidential reports.
In the case at bar, th[e trial] court recognized that an
unfounded report of child abuse does not mean that the report
was untrue. Unlike the factual situation in [Commonwealth v.]
Schley, [136 A.3d 511 (Pa. Super. 2016),] the sexual assault
allegations made by the victims in this case against other
individuals were not confirmed as false. Child abuse reports may
be deemed unfounded due to a number of factors including the
victim’s failure to pursue the claim or the unavailability of
witnesses. A county agency’s failure to act may also result in a
determination that a report of child abuse is unfounded.
11Appellant also argued in his motion in limine for its admissibility under the
doctrine of chances as outlined in Chief Justice Saylor’s concurring opinion in
Commonwealth v. Hicks, 156 A.3d 1114 (Pa. 2017). Motion in Limine,
6/1/2017, at ¶ 22. However, Appellant has abandoned this argument on
appeal, and we will not address it.
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Appellant attempted to engage in a fishing expedition and hoped
to discover information that would be detrimental to the
prosecution’s case. However, th[e trial] court declined to
indulge Appellant’s hunches and speculation by denying
Appellant’s motion.
Pennsylvania courts have held that allegations of prior
sexual abuse by a third party against a victim are irrelevant,
collateral matters and have no relationship to the matter on trial.
Appellant attempted to obtain evidence of collateral issues and
would have been prohibited from contradicting the victims using
this irrelevant information at trial. If Appellant had obtained and
used this information, the jury would have heard testimony
regarding alleged sexual assault allegations against other
individuals resulting in confusion for the jury. The jury would
have been required to determine whether those independent
allegations of sexual abuse had occurred and to assess the
credibility of the victims in relation to those allegations. The
unfounded sexual assault allegations were not relevant to
whether Appellant committed the charged offenses against these
victims. Furthermore, the subjects of those unfounded reports
have a constitutionally protected right to their reputations.
There was no basis to violate the rights of these individuals by
disclosing their names to Appellant. For all of the above
reasons, th[e trial] court denied Appellant’s motion and
determined that evidence of prior, unfounded reports of sexual
abuse made by the victims in this case against other unknown
individuals, unrelated to the case at bar, and the names of those
accused individuals were immaterial and irrelevant to Appellant’s
defense.
Trial Court Opinion, 4/4/2018, at 12-13 (unnecessary capitalization and
some citations omitted).
In his brief, Appellant avers that the trial court placed “unfair priority”
on the privacy of the individuals in the CYS reports, and erred in dismissing
the motion without first conducting an in camera review. Appellant’s Brief at
29. The Commonwealth contends that because the reports had no potential
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evidentiary value in Appellant’s case, there was no need for an in camera
review. Commonwealth’s Brief at 7.
We find Commonwealth v. Johnson, 638 A.2d 940 (Pa. 2004), to be
instructive. As in Appellant’s case, the trial court prohibited the admission of
a child victim’s prior allegation of sexual abuse against another individual in
Johnson’s trial for inter alia, rape. In doing so, the trial court in Johnson
relied on the Rape Shield Law, 18 Pa.C.S. § 3104. Our Supreme Court held
that the Rape Shield Law did not apply because it was not intended to
prohibit testimony that did not concern the past sexual conduct of the
victim. Johnson, 638 A.2d at 942 (“To be a victim is not ‘conduct’ of the
person victimized. It would be illogical to conclude that the Rape Shield Law
intended to prohibit this type of testimony.”). Similarly, the Rape Shield Law
does not apply here to prohibit the admission of this testimony. However,
that does not end our inquiry.
Even though the Rape Shield Law did not bar [the] testimony,
that testimony does not automatically become admissible. The
question then becomes whether the testimony is relevant and
material under the traditional rules of evidence. As this Court
stated in Commonwealth v. Haight, [] 525 A.2d 1199, 1200
([Pa.] 1987):
Evidence is relevant when ‘the inference sought to
be raised by the evidence bears upon a matter in
issue in the case and, second, whether the evidence
renders the desired inference more probable than it
would be without the evidence.’
Thus, the question becomes, whether the testimony … is
relevant on any material fact in issue?
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Clearly, whether or not [another individual sexually assaulted
the victim] is immaterial to whether or not, on March 22, 1987—
three or four years later—[Johnson] dragged [the victim] behind
the bushes in the park and raped her. Appellant argues that the
testimony is material as it concerns the credibility of both [the
victim] and [the previously accused individual]. However, a
witness may not be contradicted upon a collateral matter. A
collateral matter is one which has no relationship to the matter
on trial. The proffered testimony does not bear upon a matter in
issue in this case.
Johnson, 638 A.2d at 942–43 (some citations omitted).
Similarly, the proffered evidence here, as the trial court concluded, is
irrelevant to whether or not Appellant sexually assaulted the victims. As
such, the victims’ prior allegations of sexual abuse by individuals not related
to the instant case is collateral, and not a matter that Appellant could use to
impeach the victims’ credibility. Accordingly, we conclude that the trial court
did not abuse its discretion in denying Appellant’s motion in limine.
Discretionary Aspects of Sentencing
We turn now to Appellant’s claim regarding the discretionary aspects
of his sentence, mindful of the following.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant
challenging the discretionary aspects of his sentence must
invoke this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. 720; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
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(4) whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some
citations omitted).
Appellant has satisfied the first three requirements: he timely filed a
notice of appeal; he sought reconsideration in a post-sentence motion and
amended post-sentence motion; and his brief includes a Pa.R.A.P. 2119(f)
statement. Therefore, we now consider whether Appellant has raised a
substantial question for our review.
“A substantial question exists only when the appellant advances a
colorable argument that the sentencing judge’s actions were either: (1)
inconsistent with a specific provision of the sentencing code; or (2) contrary
to the fundamental norms which underlie the sentencing process.” Griffin,
65 A.3d at 935 (citation and quotation marks omitted). Appellant contends
in his 2119(f) statement that
[t]he [trial] court failed to follow the general principle that the
sentence imposed should call for confinement that is consistent
with the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the
community, and the rehabilitative needs of the defendant[,]
thereby creating a sentence that offends the fundamental norms
underlying sentencing. The court’s failure to give these
factors their proper weight in deciding Appellant’s sentence
raise[s] a substantial question as to the appropriateness of the
sentence under the [s]entencing [c]ode.
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Appellant’s Brief at 22 (emphasis added).12
Contrary to Appellant’s assertion, such a claim does not present a
substantial question for our review. Commonwealth v. Disalvo, 70 A.3d
900, 903 (Pa. Super. 2013) (citation and quotation marks omitted) (“[A]
claim of inadequate consideration of mitigating factors does not raise a
substantial question for our review.”). Accordingly, Appellant has not
satisfied the four-part test necessary to invoke our jurisdiction. Thus, he is
not entitled to review of his discretionary-aspects-of-sentencing claim.
Illegal Sentence
Finally, Appellant claims that “[t]he trial court imposed an illegal
sentence by designating Appellant an SVP, which requires him to register
with the Pennsylvania State Police for the remainder of his life.” Appellant’s
Brief at 34.
12 Appellant alleges in the argument section of his brief that the trial court
inappropriately considered the report from the Sex Offender Assessment
Board (SOAB) in fashioning his sentence. See Appellant’s Brief at 32. This
raises a substantial question. See Commonwealth v. Allen, 24 A.3d 1058,
1064-65 (Pa. Super. 2011) (citations omitted) (“This Court has recognized
that a claim that a sentence is excessive because the trial court relied on
an impermissible factor raises a substantial question.”). However, this Court
“cannot look beyond the statement of questions presented and the prefatory
2119(f) statement to determine whether a substantial question exists.”
Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012)
(citation omitted). Accordingly, we cannot consider this argument in
determining whether Appellant has raised a substantial question because he
did not include it in the statement of questions presented or in his 2119(f)
statement.
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Here, the trial court designated Appellant an SVP on October 26, 2017.
Five days later, this Court decided Commonwealth v. Butler, 173 A.3d
1212 (Pa. Super. 2017), appeal granted, 47 WAL 2018 (Pa. filed July 31,
2018).
[S]ince our Supreme Court has held that SORNA registration
requirements are punitive or a criminal penalty to which
individuals are exposed, then under Apprendi [v. New Jersey,
530 U.S. 466 (2013)] and Alleyne [v. United States, 570 U.S.
99 (2013)], a factual finding, such as whether a defendant has a
“mental abnormality or personality disorder that makes [him or
her] likely to engage in predatory sexually violent offenses [,]”
42 Pa.C.S.[] § 9799.12, that increases the length of registration
must be found beyond a reasonable doubt by the chosen fact-
finder. S[ubs]ection 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
criminal context cannot withstand constitutional scrutiny.
Accordingly, we are constrained to hold that [sub]section
9799.24(e)(3) is unconstitutional and [a]ppellant’s judgment of
sentence, to the extent it required him to register as an SVP for
life, was illegal.
Id. at 1217–18.
Pursuant to Butler, we conclude that the October 26, 2017 order
deeming Appellant an SVP is unconstitutional. Accordingly, we vacate that
portion of Appellant’s sentence.
We now address Appellant’s sex offender registration requirements.
Appellant concedes that, based on his convictions, “he is required to
register[.]“ Appellant’s Brief at 34. Relevant to his sex offender
registration, Appellant was convicted of IDSI, sexual assault, and aggravated
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indecent assault, which are Tier III offenses requiring lifetime registration
under SORNA. 42 Pa.C.S. §§ 9799.14(d), 9799.15(a)(3). However,
Appellant argues that “designating Appellant as an SVP and imposing the
Tier III registration requirements is in violation of the [Commonwealth v.]
Muniz[, 164 A.3d 1189 (Pa. 2017)] precedent.” Appellant’s Brief at 35.
Appellant raises this Muniz claim for the first time in his appellate
brief. However, “[w]hen a state enforces a constitutionally-barred penalty,
the resulting [] sentence is unlawful.” Commonwealth v. Rivera-
Figueroa, 174 A.3d 674, 678 (Pa. Super. 2017) (citation omitted). Thus, a
Muniz claim challenges the legality of Appellant’s sentence, which cannot be
waived on direct appeal or in a timely-filed PCRA petition. See
Commonwealth v. Golson, ___ A.3d ___, 2018 WL 2473514 at *5 (Pa.
Super. filed June 4, 2018) (“Generally, an appellant cannot raise
new legal theories for the first time on appeal. Notwithstanding, because
[a]ppellant’s claim presents a challenge to the legality of his sentence, it is
not waived, even though [he] raised it for the first time in his appellate
brief. Legality–of–sentence claims are not subject to traditional waiver
doctrine.”) (citations omitted). Thus, we may review it.
Critical to relief under the ex post facto clause is not an
individual’s right to less punishment, but the lack of fair notice
and governmental restraint when the legislature increases
punishment beyond what was prescribed when the crime was
consummated. Based on these concerns, [in Calder v. Bull, 3
U.S. 386 (1798),] Chief Justice Chase set out four categories of
laws that violate such prohibitions:
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1st. Every law that makes an action done before the
passing of the law, and which was innocent when
done, criminal; and punishes such action. 2nd. Every
law that aggravates a crime, or makes it greater
than it was, when committed. 3rd. Every law that
changes the punishment, and inflicts a greater
punishment, than the law annexed to the
crime, when committed. 4th. Every law that alters
the legal rules of evidence, and receives less, or
different, testimony, than the law required at the
time of the commission of the offense, in order to
convict the offender.
Furthermore, two critical elements must be met for a criminal or
penal law to be deemed ex post facto: it must be retrospective,
that is, it must apply to events occurring before its enactment,
and it must disadvantage the offender affected by it. As such,
[o]nly those laws which disadvantage a defendant and fall within
a Calder category are ex post facto laws and constitutionally
infirm. Commonwealth v. Young, [] 637 A.2d 1313, 1318
([Pa. ]1993) (emphasis in original). The ex post facto clauses of
the United States and Pennsylvania Constitutions are implicated
here because a holding rendering the effects of SORNA’s
registration requirements punitive would place the statute into
the third Calder category: application of the statute would inflict
greater punishment on appellant than the law in effect at the
time he committed his crimes.
Muniz, 164 A.3d at 1195–96 (quotation marks, unnecessary capitalization,
and some citations omitted) (emphasis added).
“The Muniz Court held that Pennsylvania’s SORNA is an
unconstitutional ex post facto law when applied retroactively to those sexual
offenders convicted of applicable crimes before the act’s effective[] date and
subjected to increased registration requirements under SORNA after its
passage.” Commonwealth v. McCullough, 174 A.3d 1094, 1095 (Pa.
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Super. 2017); see also Commonwealth v. Hart, 174 A.3d 660, 667 n.9
(Pa. Super. 2017) (holding that “the binding precedent emerging
from Muniz is confined to the determination that SORNA’s registration
requirement is punishment that runs afoul of the ex post facto clause of the
Pennsylvania Constitution when applied retroactively”).
SORNA became effective on December 20, 2012, replacing Megan’s
Law III. Appellant committed the instant offenses between January 1, 2005
and December 31, 2015. Thus, at the time he committed these offenses, he
was subject in part to Megan’s Law III,13 and in part to SORNA. Under both
registration schemes, IDSI, sexual assault, and aggravated indecent assault
mandate lifetime registration. Compare 42 Pa.C.S. § 9795.1(b)(2)
(expired) with 42 Pa.C.S. §§ 9799.14(d), 9799.15(a)(3). Although it did
not increase the period of registration, SORNA did enhance registration
requirements for Tier III offenses, including quarterly in-person reporting
and dissemination of personal information via an Internet website. Muniz,
164 A.3d at 1210-11 (citing Commonwealth v. Perez, 97 A.3d 747, 765
(Pa. Super. 2014) (Donohue, J. concurring)). These additional, more
stringent registration requirements constitute a greater punishment than
what would have been imposed under Megan’s Law III. As such, retroactive
application of these enhanced registration requirements runs afoul of
13 Megan’s Law III was invalidated by our Supreme Court’s decision
in Commonwealth v. Neiman, 624 Pa. 53, 84 A.3d 603 (Pa. 2013).
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constitutional ex post facto prohibitions. See Muniz, 164 A.3d at 1193,
1216.
Because Appellant committed some of the crimes at a time when
registration requirements were less onerous, and thus the punishment was
lesser, SORNA cannot be applied retroactively to Appellant for those counts
without violating the ex post facto clause of the Pennsylvania constitution.
See Muniz, 164 A.3d at 1192-93. However, this does not mean that
Appellant does not have to register as a sex offender. Accordingly, we
vacate Appellant’s judgment of sentence to the extent it requires Appellant
to register as a sex offender pursuant to SORNA, and remand for the trial
court to provide Appellant with the appropriate notice of his tier-based
registration obligations.
Portion of sentencing order deeming Appellant an SVP vacated.
Portion of sentencing order requiring Appellant to comply with SORNA
vacated. Judgment of sentence affirmed in all other respects. Case
remanded for proceedings consistent with this memorandum. Jurisdiction
relinquished.
Judge Bowes joins this memorandum.
Judge McLaughlin concurs in the result.
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J-S42038-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/02/2018
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