Com.. v. Moore, L.

J-A12038-19

2019 PA Super 320

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEE ANDREW MOORE :
:
Appellant : No. 1566 WDA 2018

Appeal from the Judgment of Sentence Entered March 26, 2018
In the Court of Common Pleas of Mercer County Criminal Division at
No(s): CP-43-CR-0000378-2012

BEFORE: BENDER, P.J.E., DUBOW, J., and FORD ELLIOTT, P.J.E.

OPINION BY DUBOW, J.: FILED OCTOBER 23, 2019

Appellant, Lee Andrew Moore, appeals from the Judgment of Sentence

entered on March 26, 2018. At issue in this case is whether Acts 10 and 29

of 2018 (“SORNA II”)1, which require the Pennsylvania State Police (“PSP”) to

disseminate via the Internet registration information about sex offenders,

violate the Ex Post Facto Clause of the U.S. Constitution. In light of our

Supreme Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa.

2017), we conclude that the Internet dissemination provision of SORNA II

violates the federal prohibition against ex post facto laws. Accordingly, we

affirm Appellant’s Judgment of Sentence, but direct the removal of his entry

from the state police sex offender website.

We need only state briefly the underlying facts and procedural history

in order to analyze properly the constitutionality of the public dissemination
____________________________________________

1Act of Feb. 21, 2018, P.L. 27, No. 10 (Act 10); Act of June 12, 2018, P.L.
140, No. 29 (Act 29).
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provisions of SORNA II. Between 2004 and 2008, Appellant sexually abused

his former stepson. See Commonwealth v. Moore, 2009 WDA 2013, at 1

(Pa. Super. filed Dec. 8, 2014) (unpublished memorandum), appeal denied,

117 A.3d 296 (Pa. 2015). In July 2013, following a jury trial, Appellant was

convicted of Involuntary Deviate Sexual Intercourse, Unlawful Contact with

Minor, Statutory Sexual Assault, Corruption of Minors, and Indecent Assault.2

Id. at 2. The trial court sentenced Appellant to an aggregate term of nine to

twenty-five years of imprisonment. Id. Appellant timely appealed, but this

Court denied relief. Id. at 12.

Thereafter, Appellant sought collateral relief, challenging the legality of

his sentence. In February 2018, the lower court granted Appellant relief and

vacated his Judgment of Sentence. See PCRA Ct. Order, 2/2/18. Following a

hearing, the lower court imposed a new aggregate sentence of five and one-

half to seventeen years of incarceration followed by twelve years of probation.

N.T. Sentencing, 3/26/18, at 40-42. The trial court also notified Appellant

that SORNA II required that after he is released from prison, he must register

as a convicted sexual offender with the PSP for the remainder of his life.

Appellant timely filed a Post-Sentence Motion, challenging his obligation

to register as a convicted sexual offender. Post-Sentence Motion, 4/4/18.

According to Appellant, the registration requirements set forth in SORNA II

include several punitive elements not in effect at the time he committed his
____________________________________________

2 18 Pa.C.S. §§ 3123(a)(7), 6318(a)(1), 3122.1(a), 6301(a)(1), and
3126(a)(8), respectively.

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crimes. Id. at 2 (unpaginated). Thus, according to Appellant, the

requirements violated the federal constitutional ban on ex post facto laws.

See id. Following argument, the lower court denied relief. Sentencing Ct.

Order, 10/3/18.

Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

Statement. In its responsive Opinion, the lower court rejected Appellant’s

constitutional claim, concluding that SORNA II was not punitive in either intent

or effect. See Sentencing Ct. Op., 12/12/18, at 7-12.

Appellant raises the following issues on appeal:

1. [Whether] the sex offender registration provisions established
by Acts 10 and 29 of 2018 [are] unconstitutional as applied to
an individual whose offense dates pre-dated SORNA[II; and]

2. [Whether] the punitive registration and publication provisions
established by Acts 10 and 29 of 2018 [are] severable[.]

Appellant’s Br. at 6.

Although broadly worded, Appellant’s first issue presents a narrow

challenge to the manner in which SORNA II requires the PSP to disseminate

the information that a sex offender provides to the PSP pursuant to 42 Pa.C.S.

§ 9799.63 (“Section 9799.63”).3 Appellant’s Br. at 10. Section 9799.63

provides in relevant part:

The Commissioner of the [PSP] shall . . . [d]evelop and maintain a
system for making the information described in subsection (c) publicly
____________________________________________

3 To be clear, Appellant does not challenge the registration and reporting
obligations required by SORNA II.

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available by electronic means so that the public may, without limitation,
obtain access to the information via an Internet website to view an
individual record or the records of all sexually violent predators, lifetime
registrants and other offenders who are registered with the [PSP].

42 Pa.C.S. 9799.63(b).

Essentially, Appellant asserts that Section 9799.63 is punitive because

the provision is akin to traditional forms of punishment, adversely affects his

reputation, and is excessive in relation to the General Assembly’s remedial

intentions. See Appellant’s Br. at 9-15. This punitive impact, according to

Appellant, renders Section 9799.63 unconstitutional when applied

retroactively to offenders such as Appellant, whose criminal conduct preceded

the enactment of Section 9799.63. See id.

We consider Appellant’s claim, mindful that lawfully enacted statutes are

presumptively constitutional. Commonwealth v. Lee, 935 A.2d 865, 876

(Pa. 2007); Commonwealth v. Williams, 832 A.2d 962, 973 (Pa. 2003). A

constitutional challenge presents a question of law. Commonwealth v.

Molina, 104 A.3d 430, 441 (Pa. 2014). Thus, our standard of review is de

novo, and our scope of review is plenary. Id.; Lee, 935 A.2d at 876.

Federal Ex Post Facto Claim

The constitutional prohibition against ex post facto laws ensures “‘fair

warning’ about what constitutes criminal conduct, and what the punishments

for that conduct entail.” Muniz, 164 A.3d at 1195. Thus, “[c]ritical to relief

under the Ex Post Facto Clause is not an individual's right to less punishment,

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but the lack of fair notice and governmental restraint when the legislature

increases punishment beyond what was prescribed when the crime was

consummated.” Id. (quoting Weaver v. Graham, 450 U.S. 24, 30 (1981)).

To determine whether Section 9799.63 constitutes retroactive

punishment, we employ a two-step inquiry. Smith v. Doe, 538 U.S. 84, 92

(2003); Muniz, 164 A.3d at 1208; Williams, 832 A.2d at 971. Initially, we

must ascertain whether the legislative intent was to enact a civil, remedial

scheme or impose punishment. Smith, 538 U.S. at 92. If the intent was non-

punitive, then we proceed to the second step and consider whether the

provision is “so punitive either in purpose or effect as to negate the

legislature’s non-punitive intent.” Muniz, 164 A.3d at 1208 (quoting

Williams, 832 A.2d at 971). “[O]nly the clearest proof will suffice to override

legislative intent and transform what has been denominated a civil remedy

into a criminal penalty.” Smith, 538 U.S. at 92 (internal quotation marks and

citation omitted).

Legislative Intent of Section 9799.63

In 2011, the Pennsylvania General Assembly passed the Sex Offender

Registration and Notification Act (“SORNA I”), Act of Dec. 20, 2011, P.L. 446,

No. 111, as amended, 42 Pa.C.S. §§ 9799.10 to 9799.41 (effective Dec. 20,

2012) in order to comply with the Adam Walsh Child Protection and Safety Act

of 2006 (Adam Walsh Act), Pub. L. 109-248, as amended, 34 U.S.C. §§ 20911,

et seq. In 2017, our Supreme Court determined that the retroactive

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application of SORNA I violated the federal Ex Post Facto Clause.

Commonwealth v. Muniz, 164 A.3d 1189, 1218 (Pa. 2017).

In response, the General Assembly passed SORNA II, dividing SORNA II

into two distinct subchapters—Subchapter H, which applies to “individuals who

committed a sexually violent offense on or after December 20, 2012, for which

the individual was convicted[,]” 42 Pa.C.S. § 9799.11(c), and Subchapter I,

which applies to individuals who committed a sexually violent offense “on or

after April 22, 1996, but before December 20, 2012,” and whose period of

registration has not yet expired or whose registration requirements under a

former sexual offender registration law have not expired. 42 Pa.C.S. §

9799.52.

With respect to the provisions that require the PSP to disseminate

information about the sex offender via the Internet, the legislature expressed

its intention that “public safety will be enhanced by making information about

. . . [various sex offenders] available to the public through the Internet and

electronic notification.” 42 Pa.C.S. §9799.63(a). The legislature further found

that “[k]nowledge of whether a person is a . . . [convicted sex offender] could

be a significant factor in protecting oneself and one’s family members . . .

from recidivist acts by [sex offenders.]” Id. The legislature concluded that

the “technology afforded by the Internet and electronic notification would

make this information readily accessible to parents and private entities,

enabling them to undertake appropriate remedial precautions to prevent or

avoid placing potential victims at risk.” Id. Most importantly to our analysis

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of the legislative purpose in mandating dissemination via the Internet, the

legislature stated that public access to the information that the sex offender

provides to PSP “is intended solely as a means of public protection and shall

not be construed as punitive.” Id.

We accord a legislature considerable deference to the intent stated in

its legislative proclamation. Smith, 538 U.S. at 93. The statutory text set

forth above is clear and defines a non-punitive objective—assure public safety

by disseminating information about sexual offenders. Moreover, our Supreme

Court has interpreted similar language as indicative of the General Assembly’s

remedial intent. See Muniz, 164 A.3d at 1209-10 (addressing similar

declaration of policy in SORNA I, Subchapter H)4; Williams, 832 A.2d at 971-

72 (Megan’s Law II); Commonwealth v. Gaffney, 733 A.2d 616, 619 (Pa.

1999) (Megan’s Law I). For these reasons, we conclude the General

Assembly’s intent was to create a civil, remedial scheme.

Legislative Effect

We now consider whether the Section 9799.63 is sufficiently punitive

in effect to overcome the General Assembly’s non-punitive purpose. See

Muniz, 164 A.3d at 1210. This analysis involves examining factors identified

by the United States Supreme Court. See Williams, 832 A.2d at 972-73

____________________________________________

4 Ultimately, the Muniz Court determined that SORNA I was punitive in effect.
164 A.3d at 1218. In its legislative response in SORNA II, the General
Assembly declared its intention to address the Muniz holding. See 42 Pa.C.S.
§ 9799.51(b)(4). We view this effort to address the punitive effect of its prior
legislation as further evidence of the General Assembly’s remedial intent.

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(citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)). The

Mendoza-Martinez factors include whether:

1. The sanction involves an affirmative disability or restraint;

2. The sanction has historically been regarded as punishment;

3. The sanction comes into play only on a finding of scienter;

4. The operation of the sanction will promote the traditional aims
of punishment—retribution and deterrence;

5. The behavior to which the sanction applies is already a crime;

6. An alternative purpose to which the sanction may rationally be
connected is assignable for it; and

7. The sanction appears excessive in relation to the alternative
purpose assigned.

Id. at 973 (citation omitted). While this list is not exhaustive, and no one

factor is dispositive, the factors provide “useful guideposts” in determining

whether a remedial provision is nonetheless punitive in effect. Id. at 972

(citation omitted).

We will analyze these seven factors in terms of the effect that the

mandate of Section 9799.63, requiring dissemination of the sex offender’s

registration information via the Internet, has on the sex offender. For ease of

analysis, we first address the second factor.

Whether the Sanction has Been Historically Treated as Punishment

We first examine whether the dissemination via the Internet of the sex

offender’s registration information, which includes his convictions and other

personal information, has the effect that a traditional punishment would have

on an offender.

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In Muniz, the Pennsylvania Supreme Court specifically addressed the

provision in SORNA I that directs the PSP to disseminate via the Internet the

sex offender’s registration information. 164 A.3d at 1208 (citing Subchapter

H, 42 Pa.C.S. § 9799.28). The Pennsylvania Supreme Court reasoned that

the dissemination of the registration information via the Internet is equivalent

to public shaming because it exposes offenders to ostracism and harassment

without any mechanism to prove rehabilitation:

Yesterday's face-to-face shaming punishment can now be
accomplished online, and an individual's presence in cyberspace
is omnipresent. The public [I]nternet website utilized by the
Pennsylvania State Police broadcasts worldwide, for an extended
period of time, the personal identification information of
individuals who have served their “sentences.” This exposes
registrants to ostracism and harassment without any
mechanism to prove rehabilitation—even through the
clearest proof.

Id. at 1212 (quoting Commonwealth v. Perez, 97 A.3d 747, 765-66

(Donohue, J., concurring))(emphasis added). Thus, the Court concluded,

“SORNA’s publication provisions—when viewed in the context of our current

[I]nternet-based world—[are] comparable to shaming punishments.” Id. at

1213 (distinguishing Smith, 538 U.S. at 101); contra Williams, 832 A.2d at

976-77 (rejecting analogy between public dissemination of offender

information and colonial-era shaming punishments).5

____________________________________________

5 We note that the United States Supreme Court in Smith concluded that
dissemination via the Internet is not equivalent to public shaming, but rather
“more analogous to a visit to an official archive of criminal records than it is

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Section 9799.63 is nearly identical to the Internet dissemination

provision in SORNA I. Both Subchapters direct the PSP to develop and

maintain a system to disseminate via an Internet website registration

information about sexual offenders to the public. 42 Pa.C.S. §§

9799.28(a)(1), 9799.63(b)(1). Additionally, the information compiled and

disseminated is the same, including name and aliases, year of birth, residential

and employment addresses, photographs and physical descriptions, license

plate and description of the offender’s vehicle, compliance with registration

provisions, and details of the sex offender’s crimes. 42 Pa.C.S. §§ 9799.28(b),

9799.63(c). Both Subchapters require the website to include a searchable

database of this information. Thus, for example, a member of the public can

query the website database to obtain offender information in any zip code or

geographic radius. 42 Pa.C.S. §§ 9799.28(a)(1)(i), 9799.63(b)(1). Finally,

both Subchapters require that the information shall continue to be available

for the entirety of an offender’s registration. 42 Pa.C.S. §§ 9799.28(e),

9799.63(d).

In light of these similarities, especially in terms of the broad method of

dissemination, we conclude that Muniz requires a finding that the

____________________________________________

to a scheme forcing an offender to appear in public with some visible badge
of past criminality.” 538 U.S. at 99. The Pennsylvania Supreme Court in
Muniz, however, recognized that “Smith was decided in an earlier
technological environment.” 164 A.3d at 1212. We are bound by this finding
of the Pennsylvania Supreme Court in Muniz.

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dissemination provision of Section 9799.63 is analogous to traditional public

shaming, a historic form of punishment. Thus, we conclude that this factor

weighs in favor of finding the effect of the dissemination provision of

Subchapter I to be punitive. See Muniz, 164 A.3d at 1213.6

Affirmative Disability or Restraint

We next address whether the dissemination via the Internet of the sex

offender’s registration information imposes an affirmative disability or

restraint that adversely affects a sex offender’s reputation. See, e.g.,

Appellant’s Br. at 12 (asserting Section 9799.63 punishes his reputation), 14

(asserting the provisions “infringe upon [his] right to reputation”).

It is clear that criminal punishment imposes a restraint on an individual’s

liberty interests. In Williams, our Supreme Court suggested that “an

affirmative disability or restraint is some sanction approaching the infamous

punishment of imprisonment.” 832 A.2d at 974 (internal quotation marks and

____________________________________________

6 The Supreme Court in Muniz applied the Mendoza-Martinez factors to
SORNA I as a whole while we are applying the Mendoza-Martinez factors
solely to the dissemination provision of SORNA II. When the Supreme Court
in Muniz analyzed whether the “sanction” SORNA I imposed had been
historically considered a punishment, the Supreme Court considered the effect
of the entire statute, concluding that (1) the dissemination provisions were
comparable to shaming punishments, and (2) the registration provisions were
“akin to probation.” 164 A.3d at 1213. Because we are analyzing only the
constitutionality of the dissemination provision of SORNA II, we need not
address whether the registration provisions in SORNA II are “akin to
probation.” Thus, for example, we do not consider the duration of an
offender’s registration, or whether SORNA II requires in-person reporting and
how often, or other provisions not required by Section 9799.63.

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citation omitted). However, punishment requires no physically restrictive

component. For example, criminal fines are punitive even though the fines

impose an economic, not a physical, restraint. See, e.g., Commonwealth

v. Church, 522 A.2d 30, 34 (Pa. 1987) (“[T]he primary purpose of a fine or

a penalty is twofold; to punish violators and to deter future or continued

violations[.]”); see also, e.g., United States v. Lovett, 328 U.S. 303, 315-

18 (1946) (restraint on compensation earned through federal employment

deemed punitive).

Previously, our Supreme Court has deemed restraints imposed on an

offender’s reputation by public notice provisions to be insignificant or merely

collateral. See, e.g., Williams, 832 A.2d 973-74 (recognizing that public

notice provisions of Megan’s Law II “temper” an offender’s liberty interest but

declining to credit this “secondary effect” as punitive). This analysis was

rooted firmly in United States Supreme Court precedent. See Smith, 538

U.S. at 101 (“Although the public availability of the information may have a

lasting and painful impact on the convicted sex offender, these consequences

flow not from the Act's registration and dissemination provisions, but from the

fact of conviction, already a matter of public record.”); but see id. at 115

(Ginsburg, J., dissenting) (concluding that the impact on reputation is a

significant restraint because public notification exposes the offender to

“profound humiliation and community-wide ostracism”).

Again, we are bound by our Supreme Court’s decision in Muniz. The

Supreme Court, in analyzing SORNA I, analogized the dissemination via the

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Internet of a sex offender’s registration information to public shaming and

concluded that such dissemination was a punishment. 164 A.3d at 1213.

Because this dissemination is a punishment, and punishment is a restraint,

the Internet dissemination provision of SORNA II constitutes an affirmative

restraint.

In so doing, the Muniz Court has brought Pennsylvania law in

accordance with other states that have expressly found public dissemination

provisions of sexual offender registration laws to constitute an affirmative

disability or restraint. See, e.g., Wallace v. State, 905 N.E.2d 371, 380

(Ind. 2009) (concluding that the practical effects of the notification provisions

impose substantial disabilities on registrants); Doe v. State, 189 P.3d 999,

1009-12 (Alaska 2008) (suggesting that public dissemination of offender

status exposes registrants to “community obloquy and scorn”).

We note further that the adverse impact to a sex offender’s reputation,

imposed purposefully as a consequence of conduct deemed criminal, is

widespread. It is not limited to those individuals who would benefit from this

information because they might reside or work in close proximity to the

offender. Rather, the effect of this affirmative restraint extends to any person

who has access to the Internet and who may obtain the registration

information solely for gratuitous purposes. Thus, such harm is not merely

collateral or incidental, but rather consequential and far-reaching.

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Thus, we conclude that the effect of the dissemination via the Internet

of the sex offender’s registration information weighs in favor of finding that

Section 9799.63 is punitive.

Finding of Scienter

The parties suggest that this factor should receive little weight in our

analysis. See Appellant’s Br. at 11; Commonwealth’s Br. at 14; Intervenor’s

Br. at 31-32.7 The Supreme Court in Muniz found this “factor is of little

significance in our inquiry.” 164 A.3d at 1214. We agree.

Traditional Aims of Punishment

Appellant asserts that Section 9799.63 serves the traditional aims of

retribution and deterrence. Appellant’s Br. at 11. For reasons discussed

below, we agree.8

In Muniz, the Supreme Court specifically found that “the prospect of

being labeled a sex offender accompanied by registration requirements and

the public dissemination of an offender’s personal information over the

[I]nternet has a deterrent effect.” 164 A.3d at 1215. The Supreme Court
____________________________________________

7In light of Appellant’s constitutional challenge, the Pennsylvania Office of the
Attorney General (“Intervenor”) intervened in this matter. See Notice of
Intervention, 3/21/2019 (citing Pa.R.A.P. 521).

8 Intervenor notes that the Adam Walsh Act requires states to maintain a sex
offender registry and publish otherwise personal information about offenders
on a publicly accessible website. Intervenor’s Br. at 34. Thus, Intervenor
suggests, Section 9799.63 is necessary to comply with this federal mandate,
and we should infer no punitive effect. See id. Intervenor cites no legal
authority for this proposition, and we reject it. The constitutionality of a
federal mandate does not hinge upon the government’s funding decisions.
Rather, we rely upon the holding in Muniz.

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further concluded that SORNA I had a retributive effect because “the

information SORNA allows to be released over the [I]nternet goes beyond

otherwise publicly accessible conviction data[.]” Id.

Since the Supreme Court concluded that the Internet dissemination

provision of SORNA I has both a deterrent and retributive effect, and the

Internet dissemination provision of SORNA II is identical to the one in SORNA

I, we must conclude that the Internet dissemination provision of SORNA II has

both a deterrent and retributive effect. Thus, we conclude that this factor

weighs in favor of finding the effect of Section 9799.33 to be punitive. See

Muniz, 164 A.3d at 1216.

Application to Criminal Behavior

This factor suggests that we consider “whether the behavior to which

[the challenged legislation] applies [was] already a crime” prior to its passage.

Williams, 832 A.2d at 973. It is apparent that this factor is relevant where

a claimant asserts that new legislation has criminalized his previously innocent

behavior, thus evoking the first category of ex post facto laws recognized by

Justice Chase in his authoritative discussion. See Calder v. Bull, 3 U.S. 386,

390-91 (1798) (defining four categories of ex post facto laws, including “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.”).

Section 9799.6 does not criminalize previously innocent behavior. Thus,

we agree with the parties that this factor carries little weight in our analysis.

See Appellant’s Br. at 11; Commonwealth’s Br. at 16; Intervenor’s Br. at 35.

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Non-punitive Alternate Purpose of Section 9799.33

We agree with the parties that there is a non-punitive, alternate purpose

for Section 9799.33. In Williams, for example, our Supreme Court noted the

“grave concerns over the high rate of recidivism among convicted sex

offenders.” 832 A.2d at 979. The Court then reasoned that public “awareness

that a particular sexual predator lives near a home or school frequented by

children will make a practical difference in avoiding predation.” Id. (finding

that Megan’s Law II had a non-punitive purpose to which its provisions were

rationally connected).

In Muniz, the Court recognized that “policy regarding such complex

societal issues . . . is ordinarily a matter for the General Assembly.” 164 A.3d

at 1217. The Court highlighted the lack of scientific consensus on sexual

offender recidivism rates, possibly portending an erosion in its usual

deference. See id. Nevertheless, despite this ambivalence, the Court

accepted the legislature’s findings, concluded that the registration and

reporting provisions of SORNA were aimed rationally at addressing the

legislature’s recidivism concerns, and therefore found that this factor weighed

in favor of finding SORNA to be non-punitive. Id.

The General Assembly in SORNA II reiterated its finding that sexual

offenders “pose a high risk of engaging in further offenses[.]” 42 Pa.C.S. §

9799.51(a)(2). Further, the legislature found that sexual offenders “have a

reduced expectation of privacy because of the public’s interest in public safety

and in the effective operation of government.” 42 Pa.C.S. § 9799.51(a)(5).

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Most important to our analysis is the General Assembly’s intent to

“[p]rotect the safety and general welfare of the people of this Commonwealth

by providing for registration, community notification[,] and access to

information regarding sexually violent predators and offenders who are about

to be released from custody and will live in or near their neighborhood.” 42

Pa.C.S. § 9799.51(b)(1). The legislature further determined to utilize a

“publicly accessible Internet website” as a means of disseminating this

relevant information. 42 Pa.C.S. § 9799.51(b)(2). According to the

legislature, dissemination of this information via the Internet “could be a

significant factor in protecting oneself and one’s family members, or those in

care of a group or community organization[.]” 42 Pa.C.S. § 9799.63(a).

We find that the public dissemination via the Internet of the sex

offender’s registration information is rationally related to the General

Assembly’s remedial goal of informing individuals about the identity and

location of sex offenders in order to protect oneself and one’s family members

from the risk that the sex offender will recidivate. Absent new evidence

sufficient to undermine our usual deference to the legislature’s findings

regarding recidivism rates, we conclude that this alternate purpose of the

SORNA II favors finding the Internet dissemination provisions non-punitive.

Sanction is Excessive in Relation to Alternate Purpose

Appellant asserts that Section 9799.63 appears excessive in relation to

its remedial purpose. Appellant’s Br. at 12-15. Notably, Appellant contrasts

the General Assembly’s intent to disseminate relevant information to

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individuals regarding sexual offenders “who are about to be released from

custody and will live in or near their neighborhood” with its directive to the

PSP to develop and maintain an openly accessible Internet website that

publishes otherwise non-public information globally. See id. at 12.9

By posting information about offenders on the Internet, the information

would be readily accessible to parents and private entities, “enabling them to

undertake appropriate remedial precautions to prevent or avoid placing

potential victims at risk.” 42 Pa.C.S. 9799.63(a). While we share the

legislature’s concern about the importance of providing adequate information

about sex offenders to individuals who may have contact with the offender,

the effect of disseminating this information through the Internet means that

individuals who do not “live in or near” the offender’s neighborhood will have

access to information about the offender.

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9 In response, Intervenor notes that our inquiry “is not an exercise in
determining whether the legislature has made the best choice possible to
address the problem it seeks to remedy.” Intervenor’s Br. at 37 (quoting
Smith, 538 U.S. at 105). Thus, while conceding that certain offender
information is not readily available from public sources, Intervenor
nonetheless asserts that access to personal information, such as an offender’s
choice of vehicle or other descriptive information, such as an offender’s scars
or tattoos, is reasonable and will enable “citizens to identify sex offenders in
their community.” Id. at 38. However, we find Intervenor’s reliance on
Smith to be misplaced because the United States Supreme Court determined
that the Alaska registration and notification provisions were not punitive. Id.
The Pennsylvania Supreme Court has determined, however, that the public
dissemination provision to SORNA I, which is identical to the public
dissemination provision of SORNA II, to be punitive, and we are bound by that
determination.

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In fact, the statutory language mandating the creation of the PSP

website demonstrates that the legislature intended that as many people as

possible would have access to the offender’s information. Section

9799.63(b)(1) requires the Commissioner of the PSP to develop a publicly

accessible website “so that the public, without limitation, [can] obtain

access to the information . . . to view an individual record or the records

of all sexually violent predators, lifetime registrants and other offenders who

are registered with the Pennsylvania State Police.” Id. (emphasis added).

Because the dissemination of the sex offender’s registration information

is not limited to those individuals who could benefit from the information, but

rather is expanded to any person who has Internet access, the open and

readily accessible website is incongruous with the targeted purpose of

protecting a community or neighborhood. SORNA II does not limit access to

offender information within a certain geographical area, a community, or

neighborhood. Any user of the website can obtain information about any

offender regardless of the user’s geographical proximity to the offender. Thus,

if a person is not in proximity to an offender, the user’s use of the information

is beyond the legislative purpose of providing the information to protect

individuals who might encounter the offender.

In contrast, when dealing with a Sexual Violent Predator (SVP), the

legislature has crafted a targeted method requiring law enforcement to send

a written notification with information about the SVP to those individuals who

might encounter the SVP. 42 Pa.C.S. § 9799.62. In particular, law

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enforcement must notify neighbors, child and youth agencies, school

superintendents, day care centers and colleges and universities that a sexually

violent offender is living in close proximity to the individuals or entity. Id.

This is a much more tailored and effective means of achieving the legislative

goals of SORNA II.

Similarly, Megan’s Law II limited dissemination of the offender’s

information to those individuals who could possibly have contact with the

offender and, thus, had a use for the information. Megan’s Law directed law

enforcement to disseminate information to those individuals who might come

into contact with the offender, such as an offender’s neighbors, the children

and youth services director within the offender’s county of residence, school

officials within the offender’s area school district, and licensed child care

centers located in the offenders municipality. 42 Pa.C.S. § 9798(b) (effective

Jan. 24, 2005 to Feb. 20, 2012).

For this reason, in light of the fact that SORNA II disseminates

registration information about sex offenders to those individuals who do not

need the information to protect themselves from the sex offender, we find

that Section 9799.63 is excessive when compared to the alternative purpose

of SORNA II to protect individuals from sex offenders who might recidivate.

We conclude that the effect of this factor weighs towards finding Section

9799.63 punitive.

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Balancing of Factors

In summary, the General Assembly in SORNA II reinstated many of the

sex offender registration and reporting provisions that the courts previously

found to be remedial and constitutional. The General Assembly, however,

retained the Internet dissemination provisions that the Supreme Court in

Muniz found to be punitive. Informed by the Supreme Court’s analysis and

cognizant of its binding force, we conclude that Section 9799.63 is punitive in

effect. The Internet dissemination provision mandated by Section 9799.63 is

reminisicent of traditional forms of punishment, will adversely impact

Appellant’s reputation, and the global and unrestricted dissemination of his

personal information is excessive when compared with the legislature’s

targeted purpose of ensuring the safety of any community or neighborhood in

which a sex offender resides. For these reasons, we conclude the Section

9799.63 violates the federal Ex Post Facto Clause.

Severability

Appellant contends that the Internet provisions of SORNA II are

severable from the rest of the statutory scheme. We agree.

“Severance is precluded only where, after the void provisions are

excised, the remainder of the statute is incapable of execution in accordance

with the legislative intent.” Williams, 832 A.2d at 986. In response to

Muniz, the General Assembly enacted SORNA II, largely reinstating the

registration and reporting requirements required of pre-SORNA offenders to

those prescribed by Megan’s Law II, a remedial scheme that operated

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successfully in furtherance of the General Assembly’s intent and within

constitutional limits. We perceive no obstacles to the continued execution of

SORNA II, absent its Internet dissemination provisions. Thus, we conclude

that the Internet provisions of SORNA II are severable.

Accordingly, we affirm Appellant’s Judgment of Sentence but direct the

removal of his entry from the Pennsylvania State Police Megan’s Law Website.

Judgment of Sentence affirmed. 42 Pa.C.S. § 9799.63 unconstitutional

and severable.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/23/2019

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