Commonwealth, Aplt. v. Torsilieri, G.

[J-104-2019]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 37 MAP 2018
:
Appellant : Appeal from the Order of Chester
: County Court of Common Pleas,
: Criminal Division, dated July 10,
v. : 2018 at No. CP-15-CR-1570-2016.
:
: ARGUED: November 20, 2019
GEORGE J. TORSILIERI, :
:
Appellee :

OPINION

JUSTICE BAER DECIDED: June 16, 2020
The Chester County Court of Common Pleas declared Subchapter H of the Sex

Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S. § 9799.10-9799.42,

unconstitutional as violative of several provisions of both the United States and

Pennsylvania Constitutions. Accordingly, this Court has exclusive jurisdiction over this

appeal pursuant to 42 Pa.C.S. § 722(7) (providing the Supreme Court with exclusive

jurisdiction over “[m]atters where the court of common pleas has held [statutes] invalid as

repugnant to the Constitution . . . of the United States, or to the Constitution of this

Commonwealth”). After review, we vacate that portion of the trial court’s order declaring

Subchapter H unconstitutional and remand for further development of the record.

I. Procedural History

The procedural history of this case is inextricably tied to intervening appellate court

decisions declaring aspects of prior versions of SORNA unconstitutional and the
legislative responses to those decisions, which we will address at the outset. On July 3,

2017, a jury convicted George Torsilieri (“Appellee”) of one count each of aggravated

indecent assault, 18 Pa.C.S. § 3125(a)(1), and indecent assault, 18 Pa.C.S. § 3126(a)(1),

but acquitted him of sexual assault, 18 Pa.C.S. § 3124.1.1 The trial court deferred

sentencing until completion of a presentence investigative report and a sexually violent

predator assessment by the Sexual Offenders Assessment Board (“SOAB”).

While sentencing was pending, this Court decided Commonwealth v. Muniz, 164

A.3d 1189 (Pa. 2017) (plurality), holding, as discussed in detail infra, that the registration

and notification provisions of the then-applicable SORNA were punitive. A majority of this

Court consequently concluded that the punitive provisions violated the constitutional

protections of Pennsylvania’s ex post facto clause when applied retroactively to sexual

offenders who were convicted prior to December 20, 2012, the effective date of SORNA.

In September 2017, the SOAB concluded that Appellee did not meet the criteria

for designation as a sexually violent predator (“SVP”). Between the SOAB’s

determination and Appellee’s sentencing, the Superior Court declared a different aspect

of SORNA unconstitutional. In Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super.

2017) (“Butler I”), the Superior Court concluded that, based upon this Court’s analysis in

Muniz, the designation of an offender as an SVP required proof of the relevant facts

beyond a reasonable doubt under Alleyne v. United States, 570 U.S. 99 (2013), and

Apprendi v. New Jersey, 530 U.S. 466 (2000).2

1 The facts of the crime are unrelated to the legal questions before this Court challenging
the registration and notification provisions of Subchapter H of SORNA.

2 This Court recently rejected the Superior Court’s analysis in Butler I, holding instead
that the registration, notification, and counseling requirements applicable to SVPs did “not
constitute criminal punishment” and therefore that the SVP designation procedure was
“constitutionally permissible.” Commonwealth v. Butler, 226 A.3d 972, 976 (Pa. 2020)

[J-104-2019] - 2
 Subsequently, the trial court sentenced Appellee in November 2017 to an

aggregate incarceration term of one year minus one day to two years minus one day,

followed by three years of probation, plus payment of a fine and costs. The court originally

provided that Appellee would be eligible for work release after eighteen months and

parole after twenty-two months. Additionally, as explained infra, Appellee’s aggravated

indecent assault conviction automatically categorized him as a Tier III offender, triggering

lifetime sexual offender registration pursuant to all applicable versions of SORNA. 42

Pa.C.S. § 9799.14 (d)(7).

In December 2017, Appellee filed a combined post-sentence motion raising a

weight of the evidence claim and a motion to reconsider the sentence, and the court held

a hearing. On February 8, 2018, without reconvening the parties, the court granted

Appellee’s motion in part and denied it in part, altering the sentence only to allow work

release after fourteen months, rather than eighteen months, and parole after eighteen

months, rather than twenty-two months. On February 16, 2018, the Commonwealth filed

a motion for reconsideration, asserting that the trial court erred in resentencing Appellee

without reconvening the parties.

While the motion for reconsideration was pending, Act 10 of 2018, Act of Feb. 21,

2018, P.L. 27, No. 10, became effective on February 21, 2018 (“Act 10”). As detailed

infra, Act 10 responded to this Court’s decision in Muniz and the Superior Court’s decision

in Butler I, declaring aspects of the prior version of SORNA unconstitutional. In relevant

(“Butler II”). As Butler II involves provisions related to the SVP designation process, it is
not relevant to Appellee, who was not designated an SVP.

[J-104-2019] - 3
part, the amendments included a revised version of Subchapter H, which applies to

Appellee who was convicted after the original enactment of SORNA.3

Soon thereafter, Appellee challenged the constitutionality of the newly amended

Subchapter H by filing a Post Sentence Motion Nunc Pro Tunc and a Supplemental Post

Sentence Motion Filed Nunc Pro Tunc. Appellee claimed that the registration and

notification provisions of Subchapter H violated his due process rights under the

Pennsylvania Constitution. The trial court granted Appellee the right to file his motions

nunc pro tunc in March 2018.

Prior to a hearing on the pending motions, Appellee filed a subsequent motion on

May 18, 2018, entitled “Post Sentence Motion to Bar Application of SORNA, Act 10 of

2018, 42 Pa.C.S. § 9799.10-9799.42 Chapter 97, Subchapter H of Title 42; and/or Motion

for Habeas Corpus and/or Bar Imposition of an Illegal Sentence,” asserting eight reasons

that the application of the newly enacted registration and notification provisions were

unconstitutional, which will be discussed in detail below. Many of the assertions turn on

the validity of the presumption in SORNA that all sexual offenders are dangerous and

pose a high risk of recidivation, necessitating registration and notification procedures to

protect the public from recidivist sexual offenders. Appellee claimed that this presumption

is not supported by current research, and instead Appellee asserted that the imposition

of the registration and notification provisions threaten public safety by preventing

reintegration of the offenders as law-abiding citizens.

Once again, while these motions were pending in the trial court, the General

Assembly enacted and the Governor signed an amended version of SORNA through Act

29 of 2018, Act of June 12, 2018, P.L. 140, No. 29, effective immediately on June 12,

3As explained infra, Act 10 also added Subchapter I, which applies to offenders who
committed their offenses between April 22, 1996, and December 20, 2012, when SORNA
became effective.

[J-104-2019] - 4
2018 (“Act 29”). The parties do not suggest that the amendments of Act 29 alter the

provisions of Subchapter H relevant to the issues currently under review. It is Act 29’s

iteration of Subchapter H of SORNA that is currently before this Court. For ease of

discussion, we will refer to the current version of SORNA challenged by Appellee as

“Revised Subchapter H” and the prior version generally as “SORNA”.

At the July 9, 2018 hearing on the cross-motions, the Commonwealth argued that

a post-sentence motion hearing was not the appropriate proceeding for adjudicating the

constitutionality of SORNA based upon scientific challenges to legislative fact-finding

regarding the likelihood of recidivism and the effectiveness of registration systems.4 It

emphasized that this Court in Muniz recently cited to conflicting studies concerning the

rate of sexual offender recidivation and specifically deferred to the legislature, as the

proper policy-making body, to address the complex societal issues, in the absence of a

scientific consensus. Notes of Transcript (“N.T.”), July 9, 2018, at 16-17. Despite the

Commonwealth’s argument, the court allowed Appellee to introduce affidavits and

supporting documents of three experts concluding that sexual offenders generally have

low recidivism rates and questioning the effectiveness of sexual offender registration

systems such as SORNA. The Commonwealth stipulated to the content of the exhibits

but not their validity or relevance. Moreover, the Commonwealth did “not offer any

rebuttal expert testimony nor [did it] offer any documents with respect to these witnesses.”

4 The Commonwealth additionally argued that a sentencing court was an inappropriate
forum for reviewing the constitutionality of the provision because the statute provided that
at sentencing “the court shall have no authority to relieve a sexual offender from the duty
to register under this subchapter or to modify the requirements of this subchapter as they
relate to the sexual offender.” 42 Pa.C.S. § 9799.23(b)(2). While this language forbids a
court from modifying an offender’s registration requirements as set forth in the statute, we
do not view this language as limiting a court’s authority to consider the constitutionality of
the statute.

[J-104-2019] - 5
Id. at 19. It additionally argued that Revised Subchapter H addressed the constitutional

deficiencies identified in Muniz and Butler I.

At the conclusion of the hearing and in a subsequent order dated July 10, 2018,

the trial court acknowledged that it erred in failing to re-sentence Appellee in open court

and attempted to correct the issue by vacating the February 8th order and re-imposing the

reduced sentence in open court, after explaining its view that Appellee did not have a

prior record, was youthful, and was a good candidate for rehabilitation.

The court then turned to Appellee’s constitutional challenges.5 It concluded that

the registration and notification provisions of Revised Subchapter H violated Appellee’s

right to due process by impairing his right to reputation, as protected by the Pennsylvania

Constitution, through the utilization of an irrebuttable presumption. The court also

concluded that the statute violated his right to due process under the United States and

Pennsylvania Constitutions because the statutory system failed to provide the requisite

notice and opportunity to be heard. It also concluded that Revised Subchapter H violated

the separation of powers doctrine because the General Assembly’s enactment of Revised

Subchapter H essentially removed the trial court’s ability to fashion an individualized

sentence. Finally, the court held that the statute violated Alleyne and Apprendi by

allowing “the imposition of enhanced punishment based on an irrebuttable presumption

of future dangerousness that is neither determined by the finder of fact nor premised upon

proof beyond a reasonable doubt.” Tr. Ct. Order, July 10, 2018, at 3. The court, therefore,

vacated Appellee’s sentence to the extent it required him to comply with Revised

Subchapter H’s sexual offender registration provisions.

5 Given the number and complexity of the constitutional challenges, we will set forth the
trial court’s reasoning on each issue as necessary infra.

[J-104-2019] - 6
 The Commonwealth appealed to this Court in July 2018, raising thirteen claims of

error and invoking this Court’s jurisdiction over decisions of the Courts of Common Pleas

declaring statutes unconstitutional, 42 Pa.C.S. § 722(7).6 Subsequently, we granted the

Office of the Attorney General’s application for intervention but denied intervention sought

by the Pennsylvania State Police.

II. Standard and Scope of Review

The constitutional issues before this Court raise questions of law for which our

standard of review is de novo and our scope of review is plenary. Muniz, 164 A.3d at

1195. In addressing constitutional challenges to legislative enactments, we are ever

cognizant that “the General Assembly may enact laws which impinge on constitutional

rights to protect the health, safety, and welfare of society,” but also that “any restriction is

subject to judicial review to protect the constitutional rights of all citizens.” In re J.B., 107

A.3d 1, 14 (Pa. 2014). We emphasize that “a party challenging a statute must meet the

high burden of demonstrating that the statute clearly, palpably, and plainly violates the

Constitution.” Id. (internal quotations marks and citation omitted).

III. History of Sexual Offender Registration in Pennsylvania

The case at bar presents the latest in a series of constitutional challenges to

Pennsylvania’s sexual offender registration and notification provisions spanning the last

two decades. We review these cases and the legislative responses as they are relevant

to the issues now on appeal.

In 1999, this Court deemed unconstitutional a provision of what has come to be

known as Megan’s Law I, 42 Pa.C.S. §§ 9791-9799.6 (repealed). Commonwealth v.

6 Appellee additionally appealed his judgment of sentence to the Superior Court, which
affirmed in an unpublished decision, 2300 EDA 2018. Appellee filed a petition for
allowance of appeal with this Court, raising issues unrelated to the Commonwealth’s
challenges currently under review, which was denied on April 22, 2020. Commonwealth
v. Torsilieri, ___ A.3d ___, 2020 WL 1933752 (Pa. April 22, 2020).

[J-104-2019] - 7
Williams, 733 A.2d 593 (Pa. 1999) (“Williams I”). Under Megan’s Law I, sexual offenders

were presumed to be sexually violent predators and were subject to a potential maximum

sentence of life imprisonment, unless the offender rebutted the presumption by clear and

convincing evidence. We concluded that the statute as enacted was “constitutionally

repugnant” because it placed the burden of proof on the individual rather than the

Commonwealth and struck “all of the relevant provisions of the Act pertaining to sexually

violent predators.” Id. at 603, 608. The decision did not consider the effect of notification

and registration requirements for those not designated SVPs.

In Commonwealth v. Gaffney, 733 A.2d 616 (Pa. 1999), a companion case to

Williams I, the Court addressed the notification requirements and concluded that they

were not punitive, and, therefore, did not violate the ex post facto protections. In so

concluding, this Court utilized a test articulated by the Court of Appeals for the Third

Circuit in Artway v. Attorney General, 81 F.3d 1235 (3d Cir. 1996), and E.B v. Verniero,

119 F.3d 1077 (3d Cir. 1997).7 In discussing the merits of Gaffney’s argument, this Court

distinguished the provisions of Megan’s Law I from the colonial era punishment of public

shaming by emphasizing the limited registration and notification provisions of Megan’s

Law I, which only required annual verification of the offender’s current address for ten

years and limited distribution of that information to the local police.

In the wake of Williams I and Gaffney, the General Assembly enacted Megan’s

Law II, 42 Pa.C.S. §§ 9791–9799.7 (expired), in May 2000 to address the constitutionally

defective aspects of Megan’s Law I, relating to SVP designation. In addition, Megan’s

Law II also altered the registration requirements for all offenders, regardless of SVP

7 The Artway-Verniero test provided “that a particular measure will be considered
punishment where: (1) the legislature’s actual purpose is punishment, (2) the objective
purpose is punishment, or (3) the effect of the statute is so harsh that ‘as a matter of
degree’ it constitutes punishment.” Gaffney, 733 A.2d at 618.

[J-104-2019] - 8
classification, who were convicted of a predicate offense. It mandated either ten-year or

lifetime registration of their addresses upon release and any subsequent change in

address, which information was provided to the local chief of police. The police

additionally alerted neighbors and local day care and school officials to SVPs living in the

neighborhood, providing information including a photo, the address, and the offense.

In Commonwealth v. Williams, 832 A.2d 962, 964 (Pa. 2003) (“Williams II”), this

Court confronted the question of “whether the statute’s registration, notification, and

counseling requirements, applicable to individuals deemed sexually violent predators,

constitute[d] criminal punishment,” which would have resulted in a violation of the United

State Supreme Court’s holding in Apprendi, requiring all factual determinations that result

in increasing a defendant’s punishment beyond the statutory maximum to be made by a

jury and proven beyond a reasonable doubt.

In Williams II, this Court recognized that since its decision in Gaffney, the United

States Supreme Court had adopted a test applicable to whether a sexual offender

registration and notification statute was punitive. In Smith v. Doe I, 538 U.S. 84 (2003),

the High Court, reviewing an ex post facto challenge to Alaska’s version of Megan’s Law,

applied a test developed in Kennedy v. Mendoza–Martinez, 372 U.S. 144 (1963).8 As will

be discussed in detail infra, this Court applied the Mendoza-Martinez test and concluded

that the Megan’s Law II registration, notification, and counseling provisions, applicable to

8 In Smith, the United States Supreme Court reviewed the constitutionality of Alaska’s
Sex Offender Registration Act, which involved retroactive quarterly registration and
notification provisions that resulted in the public disclosure of an offender’s name,
address, conviction, photograph, and various other information on the internet.
Relevantly, the registration provision did not require in-person updates to the information.
The Court concluded that the provisions were not punitive and therefore did not violate
the federal ex post facto clause.

[J-104-2019] - 9
SVPs, did not violate Apprendi.9 While not presented in the case, we acknowledged, in

dicta, that the lifetime registration, notification, and counseling period was “one of the

most troubling aspects of the statute.” Williams II, 832 A.2d at 982. Referencing the

seventh Mendoza-Martinez factor of excessiveness, we opined that “[a] reasonable

argument could be made that, to avoid excessiveness, the Legislature was required to

provide some means for a sexually violent predator to invoke judicial review in an effort

to demonstrate that he no longer poses a substantial risk to the community.” Id. at 982–

83.10

In 2007, this Court addressed whether the lifetime registration, notification, and

counseling provisions applicable to SVPs constituted punishment implicating various

constitutional challenges. Commonwealth v. Lee, 935 A.2d 865 (Pa. 2007). In so doing,

we reiterated that only a demonstration of the “clearest proof” can overcome a legislative

assertion that a standard is civil rather than punitive. Id. at 877 (quoting Williams II, 832

A.2d at 973). Applying this standard, we recognized that the first six Mendoza-Martinez

factors had been found to weigh in favor of finding the provisions non-punitive in prior

cases considering Megan’s Law II. Id. at 885. We, therefore, focused on the seventh

factor: whether the procedure was excessive in comparison to the non-punitive purpose.

While we acknowledged the offenders’ proffered scientific studies arguably

demonstrated that the risk of recidivism diminishes with age, we nevertheless held that

9We additionally concluded in Williams II that the punishment for an SVP’s failure to
comply was unconstitutionally punitive but severable.

10 In 2004, the General Assembly passed Act 152, a subset of which became known as
Megan’s Law III. This Court, however, determined that the Act as passed violated the
single-subject requirement of Article III, Section 3 of the Pennsylvania Constitution, as it
contained various other provisions not sufficiently related to Megan’s Law.
Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013). Concluding that the provisions could
not be severed, the Court struck Act 152 in its entirety.

[J-104-2019] - 10
the studies merely constituted “a counter-narrative to the evidence that the General

Assembly relied upon in gauging the necessity and formulating the provisions of Megan's

Law, which also is supported by empirical evidence and numerous studies.” Id.

Accordingly, we concluded that the challengers failed to meet their burden of proving

Megan’s Law II unconstitutional by demonstrating that it was punitive. We emphasized

that the “clearest proof” standard “cannot be satisfied merely by providing evidence

militating in favor of a more generous account of the likelihood of rehabilitation than that

found by the General Assembly in originally fashioning its legislation requiring registration

of sex offenders.” Id. at 886.

In 2012, the General Assembly adopted the Sex Offender Registration and

Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10–9799.41 (“SORNA”), which became

effective on December 20, 2012, replacing Megan’s Law II’s provisions. A stated purpose

of SORNA was “[t]o bring the Commonwealth into substantial compliance with the Adam

Walsh Child Protection and Safety Act of 2006 (Public Law 109-248, 120 Stat. 587).” 42

Pa.C.S. § 9799.10(1). The federal law mandated states’ adoption of a tier-based

registration and notification framework for sex offenders. States that do not enact the

provisions are subject to a penalty, unless the state demonstrates that implementation of

a provision “would place the jurisdiction in violation of its constitution, as determined by a

ruling of the jurisdiction's highest court.” 34 U.S.C. § 20927(a), (b)(1). The federal

provisions explain that in such cases “the Attorney General [of the United States] may

determine that the jurisdiction is in compliance with this chapter if the jurisdiction has

made, or is in the process of implementing reasonable alternative procedures or

accommodations, which are consistent with the purposes of this chapter.” Id.

§ 20927(b)(3).

[J-104-2019] - 11
 In adopting SORNA and implementing the federal requirements, the General

Assembly set forth legislative findings and a declaration of policy in which it explained

that “[t]he Adam Walsh Child Protection and Safety Act of 2006 provides a mechanism

for the Commonwealth to increase its regulation of sexual offenders in a manner which is

nonpunitive but offers an increased measure of protection to the citizens of this

Commonwealth.” 42 Pa.C.S. § 9799.11(a)(2). The Act continues, “If the public is

provided adequate notice and information about sexual offenders, the community can

develop constructive plans to prepare for the presence of sexual offenders in the

community.”11 Id. § 9799.11(a)(3); see also Id. § 9799.11(a)(6), (7), (8).

In line with the federal requirements, the Act created a three-tier registration

system based upon the underlying criminal offense, with Tier III applying to the most

severe sexual offenses. Id. § 9799.14. The duration and frequency of the periodic

11 The Act provides a similar statement in its declaration of policy, which provides in
relevant part:

(1) It is the intention of the General Assembly to substantially
comply with the Adam Walsh Child Protection and Safety Act
of 2006 and to further protect the safety and general welfare
of the citizens of this Commonwealth by providing for
increased regulation of sexual offenders, specifically as that
regulation relates to registration of sexual offenders and
community notification about sexual offenders.

(2) It is the policy of the Commonwealth to require the
exchange of relevant information about sexual offenders
among public agencies and officials and to authorize the
release of necessary and relevant information about sexual
offenders to members of the general public as a means of
assuring public protection and shall not be construed as
punitive.

42 Pa.C.S. § 9799.11(b)(1), (2).

[J-104-2019] - 12
reporting requirements vary across the tiers with Tier 1 offenders required to report

annually for fifteen years, Tier II offenders reporting semiannually for twenty-five years,

and Tier III offenders reporting quarterly for their lifetimes.12 Id. § 9799.15(a). This

provision also dictates various events necessitating in-person reporting, such as a change

in address, employment, telephone number, or email address. Id. § 9799.15(g). An

offender that is required to register is subject to prosecution for failure to comply under

18 Pa.C.S. § 4915.1.

As directly relevant to the issues in the case at bar, the General Assembly

additionally declared, “Sexual offenders pose a high risk of committing additional sexual

offenses and protection of the public from this type of offender is a paramount

governmental interest.” 42 Pa.C.S. § 9799.11(a)(4). SORNA establishes that a state-

wide registry of sexual offenders is to be maintained by the state police and dictates a

substantial list of information regarding the offender to be included on the registry. Id.

§ 9799.16. The Act dictates that the State Police should develop a system that

disseminates the registrants’ information to the public through a website and allows the

public to search that information by “any given zip code or geographic radius set by the

user.” Id. § 9799.28. It further mandates that a trial court “shall have no authority to

relieve a sexual offender from the duty to register under this subchapter or to modify the

requirements of this subchapter as they relate to the sexual offender.” Id. § 9799.23(b)(2).

As with its predecessors, SORNA’s enactment spurred numerous constitutional

challenges to the increased registration and reporting requirements, and many of the

claims are echoed in the challenges currently before this Court. In In re J.B., 107 A.3d 1

(Pa. 2014), juvenile sexual offenders raised numerous constitutional challenges to

12Sexual violent predators are also subjected to quarterly lifetime registration regardless
of the tier level of the underlying crime as well as additional requirements such as
counseling under Section 9799.36. Id. at 9799.15(a)(6), (d), (f).

[J-104-2019] - 13
SORNA’s application including a claim that it violated their due process rights by utilizing

an irrebuttable presumption that all juvenile offenders “pose a high risk of committing

additional sexual offenses,” 42 Pa.C.S. § 9799.11(a)(4). This Court recognized that to

establish a violation of the doctrine, the challenging party must demonstrate (1) an interest

protected by the due process clause, (2) utilization of a presumption that is not universally

true, and (3) the existence of a reasonable alternative means to ascertain the presumed

fact. J.B., 107 A.3d at 15-16.

Applying the first element of the doctrine, this Court concluded that the juveniles in

J.B. had asserted a protected interest in their right to reputation, which is protected as a

fundamental right under the Pennsylvania Constitution but is not specifically included in

the federal constitution. Id. at 16. We additionally opined that their right to reputation had

been infringed by the statutory declaration “that sexual offenders, including juvenile

offenders, ‘pose a high risk of committing additional sexual offenses and protection of the

public from this type of offender is a paramount governmental interest.’ 42 Pa.C.S.

§ 9799.11(a)(4).” Id. This Court emphasized that juvenile offenders did not have a

meaningful opportunity to challenge the presumption of recidivism and dangerousness.

This Court next considered whether the presumption of a high risk of recidivism

was universally true when applied to juveniles convicted of sexual offenses. We observed

that the trial court in J.B. had credited research which indicated that juvenile offenders

had low levels of recidivism. Id. at 17-18. Importantly, these findings drew support from

recent United States Supreme Court decisions recognizing the fundamental differences

between juveniles and adults including greater impulsivity due to lack of maturity,

increased vulnerability to negative influences, and malleability of character. Id. at 18-19

(discussing Miller v. Alabama, 567 U.S. 460 (declaring unconstitutional mandatory life

imprisonment without parole for crimes committed as a juvenile); Graham v. Florida, 560

[J-104-2019] - 14
U.S. 48 (2010) (prohibiting imposition of life without parole for non-homicide crimes

committed as a juvenile); Roper v. Simmons, 543 U.S. 551 (2005) (forbidding imposition

of death penalty on those who commit offenses as juveniles)). We observed that the trial

court opined that “these distinctions between adults and juveniles are particularly relevant

in the area of sexual offenses, where many acts of delinquency involve immaturity,

impulsivity, and sexual curiosity rather than hardened criminality.” Id. at 19. Given this

corroborated research, we concluded that the statutory presumption that juveniles sexual

offenders were at high risk of recidivating was not universally true.

Finally, we evaluated whether reasonable alternative means existed to ascertain

whether a juvenile offender was at high risk of recidivism. The Court observed that

SORNA already provided for individualized assessment of adult sexual offenders as

sexually violent predators and juvenile offenders as sexually violent delinquent children.

We therefore concluded that a similar individualized assessment process could be used

to consider whether juvenile sexual offenders posed a high risk of recidivating.

Accordingly, we held that application of SORNA's lifetime registration requirements to

juvenile offenders violated their due process rights by utilizing an irrebuttable presumption

that they posed a high likelihood of recidivating.

Three years after deciding J.B., this Court additionally found SORNA violated adult

offenders’ ex post facto rights due to its retroactive application to those convicted prior to

its effective date of December 20, 2012. Commonwealth v. Muniz, 164 A.3d 1189 (Pa.

2017) (plurality). The decision in Muniz hinged on whether the registration and notification

provisions of SORNA were punitive, such that the protections of the ex post facto clause

applied. The Court applied the Mendoza-Martinez test as adopted in Williams II but

reached the opposite conclusion. The Court distinguished SORNA’s requirements from

those of Megan’s Law II in a thorough analysis of each of the seven factors in the

[J-104-2019] - 15
Mendoza-Martinez test.13 Weighing all seven factors, the Court concluded that SORNA

was punitive, such that retroactive application of the provision violated Pennsylvania’s ex

post facto clause.14

Months later, the Superior Court applied our decision in Muniz sua sponte to a

constitutional challenge to SORNA’s SVP designation process in Butler I. It read our

decision as providing that all SORNA registration requirements “are now deemed to be

punitive and part of the criminal punishment imposed upon a convicted defendant.” Butler

I, 173 A.3d at 1215. Based upon this conclusion, the Superior Court found that the SVP

determination, which it viewed as punitive, hinged on a trial court’s findings based only

upon clear and convincing evidence. 42 Pa.C.S. § 9799.24(e)(3) (instructing that “the

court shall determine whether the Commonwealth has proved by clear and convincing

evidence that the individual is a sexually violent predator”). It, thus, deemed SORNA’s

SVP designation process unconstitutional as violative of Apprendi and Alleyne.15

In response to Muniz and Butler I, the General Assembly enacted Act 10,

specifically declaring that “[i]t is the intention of the General Assembly to address the

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

2017) and the Pennsylvania Superior Court's decision in Commonwealth v. Butler, [173

A.3d 1212 (Pa. Super. 2017)].” 42 Pa.C.S. § 9799.11(4). Act 10 split SORNA, which was

previously designated in the Sentencing Code as Subchapter H into two subchapters.

13We will address in detail this Court’s treatment of each of the factors in summarizing
the trial court’s analysis of the current iteration of Revised Subchapter H infra.

14While a majority of justices agreed that SORNA violated the state ex post facto clause,
the Court divided as to whether the federal and state ex post facto clauses were
coterminous and whether the Court should address the question under the federal
provision.

15As noted, this Court subsequently reversed the Superior Court’s decision in Butler II,
226 A.3d 972, holding the SVP designation process constitutional.

[J-104-2019] - 16
Revised Subchapter H applies to crimes committed on or after December 20, 2012,

whereas Subchapter I applies to crimes committed after April 22, 1996, but before

December 20, 2012. In essence, Revised Subchapter H retained many of the provisions

of SORNA, while Subchapter I imposed arguably less onerous requirements on those

who committed offenses prior to December 20, 2012, in an attempt to address this Court’s

conclusion in Muniz that application of the original provisions of SORNA to these

offenders constituted an ex post facto violation.16

Presumably attempting to address this Court and the Superior Court’s

determinations that the prior registration and notification requirements were punitive, the

General Assembly modified some of the SORNA provisions. Specifically, it created a

process by which a Tier II or III offender’s in-person semi-annual or quarterly registrations

could be reduced after three years and replaced with annual in-person and semi-annual

or quarterly phone registrations if the offender complies with all registration requirements

for the first three years and has not been convicted of another offense punishable by more

than a year of incarceration. 42 Pa.C.S. § 9799.25(a.1). It additionally limited the non-

sexual offenses triggering SORNA registration.17 Finally, it provided a process for sexual

16We recognize that challenges to the registration and notification provisions of
Subchapter I are also currently pending in this Court following argument in November
2019 in Commonwealth v. Lacombe, 35 MAP 2018, and Commonwealth v. Witmayer, 64
MAP 2018. In Lacombe and Witmayer, we are reviewing a trial court’s declaration of
Subchapter I’s provisions as punitive and thus, as an unconstitutional violation of the ex
post facto clause, whereas, in the case at bar, we consider only Revised Subchapter H.

17 Appellee observes that the General Assembly did not remove from the tier registration
provisions all of the non-sexual offenses highlighted by this Court in Muniz. Specifically,
the requirements still apply to those convicted of unlawful restraint, 18 Pa.C.S. § 2902(b);
false imprisonment, 18 Pa.C.S. § 2903(b); or filing factual statement about alien
individual, 18 U.S.C. § 2424. Appellee Brief at 12-13 (citing 42 Pa.C.S. § 9799.14(b)(1)-
(3), (19)). In regard to the offense of interference with custody of a child, 18 Pa.C.S.
§ 2904, Appellee asserts that new Section 9799.14(b)(3) amended the provision only to

[J-104-2019] - 17
offenders to petition for removal from the registry after twenty-five years if they

demonstrate the absence of any conviction for an offense punishable by more than a year

of incarceration and proof by “clear and convincing evidence that exempting the sexual

offender . . . is not likely to pose a threat to the safety of any other person.” Id.

§ 9799.15(a.2). As noted, Act 10 was later reenacted as Act 29.

IV. Analysis

With this background in mind, we address the Commonwealth and the Attorney

General’s challenges to the trial court’s holdings that Revised Subchapter H violates

numerous constitutional protections. The court’s conclusions will be considered in two

broad categories. First, the court held that Revised Subchapter H violates Pennsylvania’s

due process protections through the unconstitutional use of an irrebuttable presumption.

The trial court considered this holding as implicating both procedural and substantive due

process protections. As this Court and others have refused to “pigeonhole” the

irrebuttable presumption doctrine into either due process category, we address this claim

simply as an irrebuttable presumption challenge. Com., Dept. of Transp., Bureau of

Driver Licensing v. Clayton, 684 A.2d 1060, 1064 (Pa. 1996) (opining that “we do not

believe it wise to pigeonhole whether an analysis of an irrebuttable presumption is solely

one of substantive or procedural due process”).

Second, the trial court held that Revised Subchapter H’s registration and

notification provisions are punitive in nature such that they must comply with all

constitutional and statutory protections applicable to sentencing. Based on the

determination of punitive effect, the trial court concluded that the registration

exempt “cases where the defendant is the child’s parent, guardian or other lawful
custodian.” 42 Pa.C.S. § 9799.14(b)(3). He emphasizes that the section would still result
in registration for any “other family members, like non-custodial grandparents or siblings.”
Appellee Brief at 13.

[J-104-2019] - 18
requirements, which can result in lifetime registration branding an offender as at high risk

of recidivation, violated (1) the requirements of Apprendi and Alleyne, (2) imposed

sentences in excess of the statutory maximum sentence, (3) constituted cruel and

unusual punishment, and (4) violated the separation of powers doctrines by preventing

trial courts from imposing individualized sentences. We recognize that several of these

holdings implicate both federal and state constitutional provisions.

A. Trial Court’s Consideration of Scientific Evidence

Prior to considering the merits of these constitutional determinations, we first

attend to the Commonwealth and Attorney General’s overarching assertion that the trial

court’s holdings are based on its improper admission of and reliance upon Appellee’s

expert affidavits calling into question the underpinnings of Revised Subchapter H. The

Commonwealth parties’ arguments focus on two aspects of the trial court’s analysis: (1)

its refusal to defer to the legislative determination that sexual offenders as a cohort pose

a danger to the public health due to their high risk of recidivation and (2) its rejection of

the legislative conclusion that tier-based sexual offender registration systems, as

exemplified by Revised Subchapter H, are an effective means of protecting the public

from the danger posed by sexual offenders.

The Commonwealth asserts that a challenge based on evidence of recidivism

rates and the effectiveness of tier-based registration systems was recently presented to

and rejected by this Court in Muniz. In that case, we opined, “In this context, we find

persuasive [the] argument that policy regarding such complex societal issues, especially

when there are studies with contrary conclusions, is ordinarily a matter for the General

Assembly.” Muniz, 164 A.3d at 1217. The Commonwealth asserts that legislative

findings are “entitled to a prima facie acceptance of their correctness.” Com. Reply Brief

at 2. It relies upon this Court’s reasoning that “[s]uch a rule is salutary because courts

[J-104-2019] - 19
are not in a position to assemble and evaluate the necessary empirical data which forms

the basis for the legislature’s findings.” Id. (quoting Basehore v. Hampden Industrial

Development Authority, 248 A.2d 212, 217 (Pa. 1968)). The Commonwealth emphasizes

this Court’s repeated acknowledgment that policy determinations should be left to the

legislative branch. Id. at 2-3 (citing, inter alia, Commonwealth v. Hale, 128 A.3d 781, 785-

86 (Pa. 2015), and Program Administration Services, Inc. v. Dauphin County General

Authority, 928 A.2d 1013, 1017- 1018 (Pa. 2007)).

The Attorney General additionally contests the merits of the evidence relied upon

by the trial court, asserting that Appellee cherry-picked the studies in support of his

assertions and ignored contradictory research. Despite failing to provide contrary

evidence during the post-sentence motion before the trial court, the Attorney General now

highlights a recent study refuting Appellee’s experts’ conclusions. Attorney General

(“A.G.”) Reply Brief at 4 (citing Drs. Nicolas Scurich and Richard John, “The Dark Figure

of Sexual Recidivism,” University of California Irvine, School of Law, Legal Studies

Research Paper Series No. 2019-09, https://ssrn.com/abstract=3328831 (Feb. 4,

2019)).18 Given this underlying dispute, the Attorney General asserts that “[c]ourts are

18 Respectfully, Justice Donohue, in dissent, oversimplifies the Commonwealth’s
response to Appellee’s experts. The Dissent correctly observes that the Attorney General
contends that Appellee’s experts underestimate the total number of sexual offenses, thus
understating the actual recidivism rate. Dissenting Op. at 2 (Donohue, J., dissenting).
The Attorney General, however, also generally challenges “many of the assumptions and
conclusions” of Appellee’s experts and specifically argues that the studies relied upon by
Appellee’s experts utilize short time frames that fail to account fully for all the recidivist
acts of sexual offenders. A.G. Reply Brief at 4-7.

Similarly, while the Dissent correctly recognizes that “[t]he Commonwealth stipulated to
the content but not the validity or relevance” of the Appellee’s experts’ affidavits, it later
suggests the opposite by opining that the Commonwealth stipulated to Appellee’s
conclusion that the recidivism risk was “nowhere near the ‘frightening and high’ rate
assumed by” prior cases. Dissenting Op. at 1, 5 (Donohue, J., dissenting). The Attorney

[J-104-2019] - 20
not the proper forum for scientists to debate controversies and are ill equipped to

determine scientific truth.” Id. at 8 (relying inter alia on Muniz, 164 A.3d at 1217, and Lee,

935 A.2d at 885). It maintains that, in the absence of scientific consensus, “legislative

findings and public policy judgments of the General Assembly are not subject to judicial

second-guessing.” Id. at 7.

We acknowledge the danger of courts overriding legislative determinations for all

the reasons highlighted by the Commonwealth parties. As we have repeatedly observed,

“the General Assembly's ability to examine social policy issues and to balance competing

considerations is superior to that of the judicial branch.” Hale, 128 A.3d at 785–86 (citing

Lance v. Wyeth, 85 A.3d 434, 454 & n.26 (Pa. 2014)). Indeed, as the Commonwealth

parties emphasize, we recently opined on the same scientific dispute observing that

“[a]lthough there are contrary scientific studies, we note there is by no means a

consensus, and as such, we defer to the General Assembly's findings on this issue.”

Muniz, 164 A.3d at 1217.

Nevertheless, our deference to legislative determination is not boundless. Indeed

even in the cases relied upon by the Commonwealth, the limits are clear. In Hale, we

opined that “substantial policy considerations” “are generally reserved, in the first

instance, to the General Assembly,” but clarified that the policy determinations were

nonetheless “subject to the limits of the Constitution.” Hale, 128 A.3d at 785-86. Similarly,

in Program Administrative Services, we cabined our statement that “courts should not

lose sight of the respective roles of the General Assembly and the courts in terms of

establishing public policy” by nevertheless emphasizing that the General Assembly policy

making function was “subject to constitutional limitations.” Program Admin. Services, Inc.,

General, presumably, would adamantly dispute this assertion as its argument
emphasizes a conflict among social scientists regarding the recidivism rates of sexual
offenders. A.G. Reply Brief at 4-7.

[J-104-2019] - 21
928 A.2d at 1017-18. These statements reaffirm that our underlying system of checks

and balances requires the courts to serve as a backstop to protect constitutional rights of

our citizens even where legislative social policy determinations are involved. See

generally In re Fortieth Statewide Investigating Grand Jury, 197 A.3d 712, 715 (Pa. 2018)

(“[A]s with all legal proceedings which affect fundamental individual rights, the judicial

branch serves a critical role in guarding against unjustified diminution of due process

protections for individuals whose right of reputation might be impugned.”)

As described above, we recently addressed related scientific evidence which

called into question the General Assembly’s determination that juvenile offenders posed

a significant risk of recidivism requiring registration under SORNA. In J.B., we concluded

that the scientific consensus relating to adolescent development, as recognized through

the United States Supreme Court’s jurisprudence, refuted the legislative presumption that

all juvenile offenders were at high risk of recidivation. J.B., 107 A.3d at 17-19. This

scientific evidence, in turn, undermined the constitutionality of the application of SORNA’s

registration and notification procedures to juvenile offenders as it violated their right to

reputation under the Pennsylvania Constitution.

Our conclusion in J.B., while not controlling given its focus on juvenile

development, demonstrates that a viable challenge to legislative findings and related

policy determinations can be established by demonstrating a consensus of scientific

evidence where the underlying legislative policy infringes constitutional rights. In such

cases, it is the responsibility of the court system to protect the rights of the public. Indeed,

we have a particular responsibility in regard to SORNA, given that only a decision by this

Court, finding select provisions unconstitutional under the Pennsylvania’s charter, can

safeguard the constitutional rights of Pennsylvanians while also potentially averting the

[J-104-2019] - 22
loss of federal funding due to Pennsylvania’s non-compliance with the federal Adam

Walsh Act. 34 U.S.C. § 20927.

Accordingly, we respectfully reject the Commonwealth parties’ categorical

contention that the trial court lacked the authority to consider Appellee’s scientific

evidence and to question the validity of the General Assembly’s findings and policy

determinations in regard to the contention that Appellee’s various constitutional rights

were violated by the statutory provisions based upon the legislative determinations.

Nevertheless, we remain mindful that “the wisdom of a public policy is one for the

legislature, and the General Assembly's enactments are entitled to a strong presumption

of constitutionality rebuttable only by a demonstration that they clearly, plainly, and

palpably violate constitutional requirements.” Shoul v. Com., Dept. of Transp., Bureau of

Driver Licensing, 173 A.3d 669, 678 (Pa. 2017).

Based on the evidence relied upon by the trial court, Appellee poses colorable

constitutional challenges to Revised Subchapter H’s registration and notification

provisions based upon his asserted refutation of two critical legislative determinations: (1)

that all sexual offenders pose a high risk of recidivation and (2) that the tier-based

registration system of Revised Subchapter H protects the public from the alleged danger

of recidivist sexual offenders.

Appellee first presents a body of research indicating that adult sexual offender

recidivism rates have been improperly exaggerated, including through citations by this

Court and the United States Supreme Court. As an example, he references the Courts’

repeated declaration that sexual offenders have a “frightening and high” risk of recidivism,

which in turn provided support for upholding various iterations of sexual offender

registration systems. Appellee Brief at 17 (citing Smith, 538 U.S. at 103 (quoting McKune

v. Lile, 536 U.S. 24, 34 (2002))); see also Lee, 935 A.2d at 882. Appellee claims that this

[J-104-2019] - 23
oft-quoted language derives not from rigorous scientific evidence but from an

unsupported claim in “a 1988 National Institute of Corrections training manual, which in

turn cited a 1986 Psychology Today article written for a lay audience.” Appellee Brief at

17 (citing Ira Ellman and Tara Ellman, “Frightening and High”: The Supreme Court's

Crucial Mistake About Sex Crime Statistics, 30 Const. Comment. 495 (2015)). He cites

substantial recent evidence undermining this claim.

Appellee additionally presents research indicating that the tier-based registration

systems increase, rather than decrease, danger to the public because the reporting

systems stigmatize the offender and their families and remove them from support

systems. He claims that research reveals that the most effective systems for identifying

recidivism are those that utilize empirically derived assessment tools based on “identified

risk factors that correlate well with observed recidivism levels,” in contrast to the use of

tier systems based upon the underlying criminal offense, which fail to take into account

individual risk factors. Appellee Brief at 57.

Nevertheless, we are unable to conclude based upon the record currently before

this Court whether Appellee has sufficiently undermined the validity of the legislative

findings supporting Revised Subchapter H’s registration and notification provisions,

especially in light of the contradictory scientific evidence cited by the Commonwealth

during this appeal which may refute the Appellee’s experts. It is not the role of an

appellate court to determine the validity of the referenced studies based on mere citations

rather than allowing the opportunity for the truths to develop through a hearing on the

merits of the evidence. Accordingly, a remand is appropriate to allow the parties to

[J-104-2019] - 24
address whether a consensus has developed to call into question the relevant legislative

policy decisions impacting offenders’ constitutional rights. 19

In framing the remand, we must first determine the extent to which each of the trial

court’s conclusions of unconstitutionality rested on its crediting of the Appellee’s scientific

evidence. Accordingly, we now address the court’s specific determinations on each of

Appellee’s claims.

B. Due Process- Irrebuttable Presumption

We turn first to the trial court’s conclusion that the registration and notification

provisions of Revised Subchapter H violate Pennsylvania’s due process protection

through the unconstitutional utilization of an irrebuttable presumption infringing upon the

right to reputation. The court highlighted that, unlike the federal constitution, the

Pennsylvania Constitution specifically protects the right to reputation as a fundamental

right in Article I, Section 1, which provides: “All men are born equally free and

independent, and have certain inherent and indefeasible rights, among which are those

of enjoying and defending life and liberty, acquiring, possessing and protecting property

and reputation, and of pursuing their own happiness.” Pa. Const., Art. I, § 1.

The trial court held the registration and notification provisions of SORNA to be

facially unconstitutional, as well as unconstitutional as applied to Appellee, due to the

19 We observe that our colleagues in dissent would resolve the scientific dispute on the
evidence presented by Appellee and cited by the Attorney General in briefing to this Court.
Their independent analysis of the scientific evidence, however, leads to diametrically
opposed conclusions. Justice Mundy would reverse the trial court concluding that
Appellee failed to demonstrate that the legislative determinations are “unsupported by
current scientific research in a manner that would render the statute unconstitutional,”
Dissenting Op. at 1 (Mundy, J., dissenting), whereas Justice Donohue would affirm the
unconstitutionality of Revised Subchapter H based upon her assessment of the scientific
evidence cited by the Commonwealth in its briefing to this Court. Respectfully, this
divergence of opinion further solidifies the necessity of a remand to develop the factual
record and allow argument regarding the scientific evidence as discussed further, infra at
41-44.

[J-104-2019] - 25
legislature’s use of the irrebuttable presumption that all sexual offenders pose a high risk

of sexual recidivism. Tr. Ct. Op. at 43 (citing 42 Pa.C.S. § 9799.11(a)(4)), 52. It

recognized that the test for an unconstitutional irrebuttable presumption requires three

factors: (1) the existence of a presumption that impacts “an interest protected by the due

process clause;” (2) a presumption that “is not universally true;” and (3) the existence of

reasonable alternatives to ascertain the presumed fact. Id. at 43.

Applying these factors, the court first opined that “[t]here can be no real

disagreement that the label of high risk dangerous sex offender impacts one’s

fundamental right to reputation.” Id. at 45. In coming to this conclusion, the court relied

upon the scientific research presented during the hearing demonstrating that the label of

sexual recidivist stigmatized offenders and subjected them to difficulty finding housing,

employment, and education as well as erected barriers to the establishment of “pro-social

relationships with others.” Id. at 43 (citing scientific research admitted into evidence).

The court opined that “[t]he public declaration, based on faulty premises . . . , that all

sexual offenders are dangerous recidivists only serves to compound the isolation and

ostracism experienced by this population and sorely diminish their chances of

productively reintegrating into society.” Id. at 44. The court additionally stated that the

registration and notification provisions applied not only to sexual offenses but also to

crimes such as unlawful restraint, 18 Pa.C.S. § 2902(b), which did not necessarily entail

sexual conduct, but yet subjected the offenders to “global public shaming as incorrigible

sexual recidivists.” Id. at 44-45.

Addressing the second prong concerning whether the presumption is universally

true, the court again looked to the research presented by Appellee. The court observed

that the research indicated that eighty to ninety percent of all sexual offenders are never

reconvicted for a sexual crime. Id. at 45. Moreover, the trial court opined that Appellee

[J-104-2019] - 26
fell into a subgroup of offenders without “criminal backgrounds, significant life problems,

or the prognosis typical of offenders.” Id. at 46-47. The research reviewed by the trial

court revealed that this subgroup has even lower recidivism rates. Id. at 47.

The court acknowledged this Court’s observations in Muniz that resolution of the

conflicting evidence regarding recidivism rates was better suited for legislative

determination. Nevertheless, the trial court opined,

We have no issue with the Court’s determination that policy is
within the domain of the Legislature; we take no issue with the
Legislature’s policy that the protection of the public from
dangerous sex offender recidivists is a compelling
government interest. It is the Legislature’s manner of
implementing that policy, of branding all as evil for the actions
of a most perverse few, that we reject. Thus, contrary to the
Commonwealth’s argument that Muniz, supra forecloses any
further judicial inquiry regarding the constitutionality of
SORNA, we would respectfully submit that neither our hands,
nor those of [the Pennsylvania Supreme Court], are so tied.
Id. at 47. Instead, the trial court opined that, based upon the research presented, “the

presumption that all sex offenders are dangerous recidivists cannot be universally true.”

Id. at 47-48.

The court turned to the third prong of the irrebuttable presumption analysis

concerning whether reasonable alternatives exist to determine which offenders are at

high risk of recidivating. The court again relied upon the scientific evidence presented by

Appellee in support of his argument that more accurate tools than Revised Subchapter

H’s tier-based system existed for determining which offenders were at higher risk of

recidivating and that other treatment programs reduced recidivism more that the

registration and notification provisions of Revised Subchapter H.

The trial court emphasized that this Court, in J.B., recently determined that

SORNA’s registration and notification provisions violated juvenile offenders’ right to

[J-104-2019] - 27
reputation, in part, by concluding that individualized assessment, similar to that utilized

by the SOAB, provided a reasonable alternative tool to determine the likelihood of

recidivation. The trial court opined,

[I]t is no great leap to conclude that the application of
individualized risk assessments via a pre-deprivation hearing
for adult offenders is not only possible, but is also actually
available to the criminal justice system, and constitutes a
reasonable, more effective alternative for identifying high-risk
recidivists and reducing sexual re-offending than the
draconian public shaming/warning procedures so reminiscent
of colonial-age stocks and scarlet letters, currently in place for
all adult sexual offenders regardless of risk under [Revised
Subchapter H].
Tr. Ct. Op. at 49.

The court rejected the Commonwealth’s argument that the 2018 amendments to

SORNA resulted in the recidivist presumption being rebuttable because it provided a

process for offenders to petition the court to be removed from the registration and

notification requirements of Revised Subchapter H after twenty-five years. The court

opined that “[a] post-deprivation process that provides for a hearing concerning the

deprivation of a fundamental right that occurs twenty-five (25) years after the injury is akin

to the provision of no process at all.” Id. at 50. The court emphasized that during the

intervening twenty-five years the adult offenders will have been “effectively placed out of

the job market, ostracized from pro-social resources, and unduly stigmatized for the

majority of their most productive years.” Id.

Next, the court rejected the suggestion that the underlying trial provided an

opportunity to contest the application of the registration provisions. The court observed

that the trial merely provided an opportunity to contest whether the defendant committed

the crime but did not provide an avenue to contest the applicability of the presumption of

a high likelihood of recidivation.

[J-104-2019] - 28
 Finding all prongs of the irrebuttable presumption doctrine met, the trial court

concluded that SORNA’s registration and notification provisions involved an

unconstitutional irrebuttable presumption on its face and as applied to Appellee. Id. at

52. A review of the court’s conclusions clearly reveals that the court’s analysis of each of

the three prongs of the irrebuttable presumption doctrine relies heavily upon the scientific

evidence presented by Appellee. As noted, the Commonwealth parties awaited this

appeal to proffer evidence to rebut Appellee’s experts. Given the procedures leading to

this point, the importance of the underlying issue, and our deference to legislative policy

determinations, we decline to render a conclusion on the basis of the record before us.

Instead, we conclude that remand is necessary to allow the parties to present additional

argument and evidence to address whether a scientific consensus has developed to

overturn the legislative determinations in regard to adult sexual offenders’ recidivation

rates and the effectiveness of a tier-based registration and notification system as they

relate to the prongs of the irrebuttable presumption doctrine. See infra at 41-44 for

additional discussion.

C. Challenges based upon the trial court’s conclusion that Revised

Subchapter H’s registration and notification provisions are punitive

As indicated above, the trial court’s remaining holdings finding Revised Subchapter

H’s registration and notification provisions unconstitutional are rooted in its determination

that the provisions are punitive. According to the trial court, if the provisions are punitive,

then they constitute a part of an offender’s criminal sentence, which in turn is subject to

the various constitutional and statutory protections alleged by Appellee. Thus, we first

consider the trial court’s determination that Revised Subchapter H’s registration and

notification provisions constitute punishment through the application of the Mendoza-

[J-104-2019] - 29
Martinez test. In so doing, we evaluate the degree to which the trial court’s conclusions

are based upon the scientific evidence presented by Appellee.

1. Mendoza-Martinez factors

The two-part Mendoza-Martinez inquiry is well established in this Commonwealth:

“We first consider whether the General Assembly’s ‘intent was to impose punishment,

and, if not, whether the statutory scheme is nonetheless so punitive either in purpose or

effect as to negate the legislature’s non-punitive intent.’” Muniz, 164 A.3d at 1208

(quoting Williams II, 832 A.2d at 971).

There is no dispute in regard to the first step as the General Assembly has

repeatedly reenacted the unambiguous statement that the purpose of the registration and

notification provisions “shall not be construed as punitive.” 42 Pa.C.S. § 9799.11(b)(2).

Rather, the statute expounds,

It is the intention of the General Assembly to substantially
comply with the Adam Walsh Child Protection and Safety Act
of 2006 and to further protect the safety and general welfare
of the citizens of this Commonwealth by providing for
increased regulation of sexual offenders, specifically as that
regulation relates to registration of sexual offenders and
community notification about sexual offenders.
Id. § 9799.11(b)(1).

Indeed, the most recent amendments clarified that in enacting Revised Subchapter

H and Subchapter I, the General Assembly intended “to address the Pennsylvania

Supreme Court's decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) and the

Pennsylvania Superior Court's decision in Commonwealth v. Butler [173 A.3d 1212 (Pa.

Super. 2017)],” which both deemed the prior iteration unconstitutional based upon a

finding that the statute was punitive. 42 Pa.C.S. § 9799.11(b)(4). Thus, as did the trial

court, we accept that the General Assembly’s intent in enacting Revised Subchapter H

was non-punitive.

[J-104-2019] - 30
 Accordingly, we turn to the second phase of the Mendoza-Martinez test, which

considers the following seven factors in determining whether the effect of a statute is

punitive:
(1) Whether the sanction involves an affirmative disability or
restraint;

(2) Whether it has historically been regarded as a punishment;

(3) Whether it comes into play only on a finding of scienter;

(4) Whether its operation will promote the traditional aims of
punishment - retribution and deterrence;

(5) Whether the behavior to which it applies is already a crime;

(6) Whether an alternative purpose to which it may rationally
be connected is assignable for it;

(7) Whether it appears excessive in relation to the alternative
purpose assigned.
Muniz, 164 A.3d at 1200 (quoting Mendoza-Martinez, 372 U.S. at 168–69) (formatted for

readability). We emphasize that only the “clearest proof” of punitive effect can override

the legislature’s stated intent that the statute be construed as non-punitive. Muniz, 164

A.3d at 1208; Lee, 935 A.2d at 876-77.

As we have found in our recent decisions and as the parties before us agree,

Factor 3, regarding a finding of scienter, and Factor 5, addressing whether the behavior

is a crime, provide little weight to the analysis of whether sexual offender registration and

notification provisions are punitive. Muniz, 164 A.3d at 1214, 1216. This Court in regard

to Factors 3 and 5, following the United States Supreme Court, has observed that “where

the concern of a sex offender registration statute like SORNA is protecting the public

against recidivism, past criminal conduct is ‘a necessary beginning point.’” Id. at 1214

(quoting Smith, 538 U.S. at 105). Given the agreement that these factors provide little

[J-104-2019] - 31
guidance in determining whether the statute is punitive, we will not discuss them further

in this analysis.

a. Factor 1: Whether the sanction involves an affirmative disability or

restraint

Applying the first Mendoza-Martinez factor, the trial court acknowledged this

Court’s recent analysis in Muniz. In Muniz, this Court emphasized the distinctions

between the registration requirements of the then-applicable SORNA and those which

this Court reviewed in Williams II and that the United States Supreme Court considered

in Smith. We contrasted the absence of required in-person updates in Smith with

SORNA, which imposed a minimum of 100 in-person updates in the first twenty-five years

and likely many more due to updates for changes of address, phone numbers,

appearance, and other required updates.

This Court in Muniz additionally rejected the Commonwealth’s attempt to analogize

the quarterly in-person updates to the monthly counseling sessions for SVPs, which were

deemed non-punitive in Williams II. We distinguished the in-person updates in SORNA

by emphasizing that SORNA’s reporting requirements did not involve any sort of

counseling to aid the offender in preventing relapse as was the case in Williams II. Thus,

this Court’s found that the registration and notification provisions of SORNA constituted

an affirmative disability or restraint. Muniz, 164 A.3d at 1211.

The trial court in the case at bar recognized that the amendments to Revised

Subchapter H were intended to address the Muniz decision. It observed that the recent

amendments included a provision which allowed for the substitution of telephonic updates

for the in-person quarterly and semiannual updates for Tier II and III offenders who

complied with all registration requirements for the first three years and met other

requirements. The court also acknowledged that an offender could petition to be relieved

[J-104-2019] - 32
of the registration requirements after twenty-five years. The trial court opined that the

reduction in registration requirements from SORNA to Revised Subchapter H was “largely

ephemeral” as the offender remains “for all intents and purposes, on probation for the

entirety of their lives, with all the regulation, control, and sundering of privacy that such

status entails.” Tr. Ct. Op. at 61.20 It additionally opined that the provision for review after

twenty-five years was “illusory and akin to no post-deprivation process at all.” Appellee

Brief at 62. It, therefore, concluded that this factor weighed in favor of finding Revised

Subchapter H’s requirements punitive.

We acknowledge that the court’s analysis of this factor does not overtly rely upon

Appellee’s scientific evidence. Nevertheless, the trial court’s recounting of the impact of

the registration updates and the publication of the relevant data are to some extent

informed by the expert’s evidence of the negative effects of registration on sexual

offenders, as discussed in more detail in regard to other factors below. Accordingly, in

balancing all of the factors, the court may have weighed this factor more heavily as

punitive because of the court’s acceptance of Appellee’s expert evidence. Therefore, we

find it appropriate for the trial court to reevaluate this factor after a full hearing on the

scientific evidence.

b. Factor 2: Whether it has historically been regarded as a punishment

20 The trial court expressively emphasized the imposition on the offender:

They cannot change their address without reporting it to the
police. They cannot begin school or switch schools without
notifying the police. They cannot buy a new car without
informing the police. Nor can they take a new job without
reporting it to the police, so that this fact, along with the rest
of the personal aspects of their lives, can be further
disseminated to anyone in the world via the Internet.

Tr. Ct. Op. at 61.

[J-104-2019] - 33
 In Muniz, this Court opined that the registration and notification provisions of

SORNA were comparable to the established punitive measures of probation and

shaming. We again distinguished the United States Supreme Court’s 2003 analysis of

registration provisions in Smith, observing that the “technological environment” had

changed in the years between 2003 and 2017 such that the shaming aspect of the

registration provisions differed dramatically. Muniz, 164 A.3d at 1212. While Smith had

distinguished colonial era shaming from Alaska’s 2003 online registry by emphasizing

that shaming depended on face-to-face ostracism by the community, this Court

recognized that the current technology and social media usage created a world in which

“[y]esterday’s face-to-face shaming punishment can now be accomplished online.” Id.

(quoting Commonwealth v. Perez, 97 A.3d 747, 765-66 (Pa. Super. 2014)).

We additionally opined that the in-person reporting requirements of SORNA, as

distinguished from the statute reviewed in Smith, resembled the periodic meetings

imposed upon those on probation and similarly included the threat of incarceration for

failure to abide by the reporting requirements. This Court concluded that these attributes

of SORNA weighted this factor toward finding the statute punitive. Id. at 1213.

The trial court in the case at bar concluded that “nothing about the [Revised

Subchapter H] amendments to SORNA alters” this Court’s analysis in Muniz. Tr. Ct. Op.

at 65. It opined that Revised Subchapter H’s “slightly ameliorated in-person appearances

do not change the global nature of the public shaming or the intensity of the probationary-

style onus on the offender.” Id. It, therefore, found this factor also weighed in favor of

viewing Revised Subchapter H as punitive in nature.

We recognize that, similar to Factor 1, the trial court’s analysis of this factor does

not specifically draw upon the scientific evidence presented by Appellee. Instead, it is

reliant upon the analysis in Muniz. Nevertheless, we recognize that the expert evidence

[J-104-2019] - 34
addressing the effects of the registry on offenders may have altered the trial court’s

assessment of the degree to which the online public registry is akin to public shaming and

probation. As with the first factor, we conclude that consideration of the scientific

evidence presented on remand may alter the trial court’s weighting of this factor.

c. Factor 4: Whether its operation will promote the traditional aims of

punishment - retribution and deterrence

In Muniz, we distinguished SORNA’s provisions from the Megan’s Law II

provisions addressed in Williams II. While the criminal offenses involved in Megan’s Law

II were generally serious crimes where the deterrent effect of registration paled in

comparison to the substantial incarceration terms, we emphasized that SORNA’s

registration provisions applied to a much wider range of offenses, many of which carried

minimal terms of incarceration.21 We concluded that the registration and notification

provisions, therefore, entailed a more significant deterrent effect in SORNA than in past

iterations.

21Specifically, we pointed to following predicate offenses that could be graded as
misdemeanors:

interference with custody of children, 18 Pa.C.S. § 2904;
luring a child into a motor vehicle or structure, 18 Pa.C.S.
§ 2910; indecent assault, 18 Pa.C.S. § 3126(a)(1) - (6), (8);
invasion of privacy, 18 Pa.C.S. § 7507.1(b); and obscene and
other sexual materials and performances, 18 Pa.C.S.
§ 5903(a)(3)(ii), (4)(ii), (5)(ii), (6). SORNA predicate offenses
that may have a maximum incarceration term of two years or
less under federal law are as follows: video voyeurism, 18
U.S.C. § 1801; misleading domain names on the internet, 18
U.S.C. § 2252B; and abusive sexual conduct, 18 U.S.C.
§ 2244.

Muniz, 164 A.3d at 1215 n.20.

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 We also concluded in Muniz that the retributive aspects of the registration

provisions were greater than in the sexual offender registration provisions reviewed in

Smith or Williams II, observing that “SORNA has increased the length of registration,

contains mandatory in-person reporting requirements, and allows for more private

information to be displayed online.” Muniz, 164 A.3d at 1216. Given the increased

deterrent and retributive aspects of SORNA as compared with prior statutes, we

concluded that this factor weighed more heavily in favor of finding the provisions to be

punitive. Id.

In the case at bar, the trial court concluded that the analysis of this factor in Muniz

controlled as “[t]he Act 10 amendments to SORNA did nothing to alter the deterrent and

retributive effects of the pre-amendment Act.” Tr. Ct. Op. at 68. It emphasized that

Revised Subchapter H “still requires lengthy, often lifetime, registration, still requires in-

person registration, places onerous reporting burdens on offenders, and allows very

private information to be published worldwide over the Internet.” Id. at 68-69. The trial

court supported this analysis by additionally questioning the legitimacy of the

Commonwealth’s asserted goal of protecting the public from sexual offender recidivation.

In addressing this factor, the court explicitly referenced the scientific evidence presented

by Appellee indicating that sexual offender registries are ineffective. Id. at 67.

While this factor could arguably be addressed solely by comparing the provisions

of the current Revised Subchapter H to those of SORNA analyzed in Muniz, the trial

court’s analysis demonstrates its consideration of the effectiveness of sexual offender

registries in addressing this factor. As with the other factors, we conclude that the court’s

analysis of this factor also favors remanding for further consideration in light of any

additional scientific evidence.

[J-104-2019] - 36
 d. Factor 6: Whether an alternative purpose to which it may rationally be

connected is assignable for it

The appellant in Muniz conceded that the sixth Mendoza-Martinez factor weighed

in favor of finding SORNA non-punitive when he agreed that there was a rational

connection between the sexual offender registration and notification provisions and public

safety. This Court, nevertheless, addressed this issue based upon the claims raised by

an amicus curiae in the case, contesting the rationality of the connection. The amicus

cited scientific evidence that “most offenders will not commit another sexual offense,” that

“SORNA therefore produces an illusion of security from stranger perpetrators when the

majority of sexual crimes are committed by someone known to the victim[;]” and that

“SORNA diverts law enforcement efforts away from the most serious offenders and from

effective methods of crime control and treatment.” Muniz, 164 A.3d at 1216. The

Commonwealth’s amicus curiae, in turn, cited contrary scientific evidence allegedly

supporting the legislative presumption that sexual offenders pose a high likelihood of

recidivation.

In response to these arguments of amici in Muniz, this Court, understandably,

concluded that the evidence was not sufficient to overturn the legislative finding that

“[s]exual offenders pose a high risk of committing additional sexual offenses and

protection of the public from this type of offender is a paramount governmental interest.”

Id. at 1217 (quoting 42 Pa.C.S. § 9799.11(a)(4)). We additionally observed that “the

General Assembly legislated in response to a federal mandate based on the expressed

purpose of protection from sex offenders.” Id.

As has been repeatedly quoted by the Commonwealth parties in this case, we

additionally opined:

We recognize there are studies which find the majority of
sexual offenders will not re-offend, and that sex offender

[J-104-2019] - 37
 registration laws are ineffective in preventing re-offense; we
also recognize there are studies that reach contrary
conclusions. In this context, we find persuasive [the]
argument that policy regarding such complex societal issues,
especially when there are studies with contrary conclusions,
is ordinarily a matter for the General Assembly. See e.g.,
Commonwealth v. Hale, [128 A.3d 781, 785 (Pa. 2015)]
(where “substantial policy considerations” are involved “such
matters are generally reserved . . . to the General Assembly”).
Id. at 1217. We continued reasoning that “[a]though there are contrary scientific studies,

we note there is by no means a consensus, and as such, we defer to the General

Assembly's findings on this issue.” Id. Accordingly, we concluded that “there is a purpose

other than punishment to which the statute may be rationally connected and this factor

weighs in favor of finding SORNA to be nonpunitive.” Id.

In regard to the sixth factor, the trial court acknowledged this Court’s analysis in

relation to SORNA. The trial court, however, respectfully concluded that “the evidence

presented in court on July 9, 2018, gives rise to serious concerns about the rationality of

[Revised Subchapter H’s] connection to its alleged non-punitive purpose.” Tr. Ct. Op. at

70. The court instead concluded that the connection between the registration

requirements and the intended purpose of public protection was “anything but rational.”

Id. It, therefore, weighed this factor in favor of finding the statute punitive. Nevertheless,

acknowledging that this Court could conclude otherwise based on Muniz, it opined that it

would still find Revised Subchapter H’s requirements punitive even if the sixth factor was

weighted as non-punitive.

Even though the trial court expressly limited the impact of this factor on its eventual

balancing of the seven factors, it cannot be disputed that the trial court’s evaluation of the

Appellee’s experts’ evidence affected its view of the case. Indeed, it expressly references

its evaluation of this factor in its consideration of Factor 7. Thus, the trial court’s analysis

of this factor also counsels in favor of a remand to develop the record.

[J-104-2019] - 38
 e. Factor 7: Whether it appears excessive in relation to the alternative

purpose assigned.

This Court in Muniz recognized that it had expressed hesitation concerning this

factor in Williams II regarding the absence of any procedure by which, in that case, an

SVP could later assert that he or she no longer posed a danger to the public. Notably,

however, the SVP determination process in Williams II entailed an initial individualized

assessment of risk of danger. In contrast, we recognized in Muniz that “SORNA

categorizes a broad range of individuals as sex offenders subject to its provisions,

including those convicted of offenses that do not specifically relate to a sexual act.” Muniz

164 A.3d at 1218. We, therefore, concluded that “SORNA's requirements are excessive

and over-inclusive in relation to the statute's alternative assigned purpose of protecting

the public from sexual offenders.” Id.

The trial court recited our analysis in Muniz and opined that Revised Subchapter

H “has no impact on the concerns raised by [this Court] with respect to this factor.” Tr.

Ct. Op. at 71. Referencing back to its conclusions regarding Factor 6, the court continued

that this Court’s conclusion regarding the excessiveness factor in Muniz “is even more

compelling when the rationality of SORNA’s relationship to its professed non-punitive

purpose is deconstructed and debunked.” Id. at 71. Thus, the trial court’s evaluation of

this factor is also tied to the strength of Appellee’s scientific evidence, which may require

reevaluation following the presentation of any additional scientific evidence on remand.

f. Balancing of Factors

Weighing the factors in Muniz, this Court concluded that all of the relevant factors,

other than Factor 6, weighed “in favor of finding SORNA to be punitive in effect despite

its expressed civil remedial purpose.” Muniz, 164 A.3d at 1218. Specifically, we held that

“SORNA involves affirmative disabilities or restraints, its sanctions have been historically

[J-104-2019] - 39
regarded as punishment, its operation promotes the traditional aims of punishment,

including deterrence and retribution, and its registration requirements are excessive in

relation to its stated nonpunitive purpose.” Id.

Likewise, weighing all the factors, the trial court in the case at bar opined that the

balancing applied in Muniz was applicable to Revised Subchapter H such that it “is still

sufficiently punitive in effect to overcome the General Assembly's stated non-punitive

purpose.” Tr. Ct. Op. at 72. The court additionally reasserted, that while not determinative

of its balancing of factors, it would nevertheless weigh Factor 6 more heavily in favor of

finding Revised Subchapter H punitive because it did “not consider SORNA to be

rationally connected to any legitimate non-punitive purpose because of the evidence

presented before [it] on July 9, 2018.” Id.

We observe that the scientific evidence presented by Appellee during the post-

sentence motion arguably influenced the trial court’s consideration of all five relevant

factors and overtly drove the analysis of three. Accordingly, we conclude that its labeling

of Revised Subchapter H as punitive was impacted by its assessment of Appellee’s expert

evidence such that reevaluation of the balancing of the seven Mendoza-Martinez factors

is appropriate following presentation of additional scientific evidence on remand.

The trial court’s conclusion that Revised Subchapter H is punitive inevitably

resulted in the court’s determination that the registration requirements were part of

Appellee’s criminal sentence, and thus, subject to the various constitutional and statutory

protections. Evaluating each challenge raised by Appellee, the trial court concluded that

(1) Revised Subchapter H violated the dictates of Apprendi and Alleyne because it

subjected offenders to increased registration provisions without a jury determining that

the offender posed a risk of future dangerousness beyond a reasonable doubt; (2) the

registration periods constituted illegal sentences in excess of the statutory maximum

[J-104-2019] - 40
terms of incarceration; (3) the provisions resulted in an excessive sentence in violation of

the federal and state constitutional provisions related to cruel and unusual punishments;

and (4) Revised Subchapter H violated the separation of powers doctrine by

“encroach[ing] upon the judiciary’s fact-finding and individualized sentencing

responsibilities.” Tr. Ct. Op. at 78. As these holding flow from the trial court’s

determination that Revised Subchapter H is punitive, they too should be reevaluated

following remand.

V. Conclusion

It is abundantly clear that the trial court’s various declarations of Revised

Subchapter H’s registration and notification provisions as unconstitutional derived directly

from the court’s acceptance of and reliance upon Appellee’s experts’ evidence

challenging the legislative determinations underpinning Revised Subchapter H,

specifically (1) that all sexual offenders pose a high risk of recidivation and (2) that the

tier-based registration system of Revised Subchapter H protects the public from the

alleged danger of recidivist sexual offenders.

Unfortunately, the procedural posture of this case prevents tidy resolution of the

matter by this Court. While Appellee presented a colorable argument that the General

Assembly’s factual presumptions have been undermined by recent scientific studies, we

are unable to affirm the trial court’s several conclusions finding Revised Subchapter H

unconstitutional. We note that the evidence of record does not demonstrate a consensus

of scientific evidence as was present to find a presumption not universally true in J.B.,

107 A.3d 17-19, nor the “clearest proof” needed to overturn the General Assembly’s

statements that the provisions are not punitive, which we have noted “requires more than

merely showing disagreement among relevant authorities,” Lee, 935 A.2d at 885. We

hesitate to find these standards met by the stipulated admission of three experts’

[J-104-2019] - 41
affidavits, without an opportunity to weigh this evidence against contrary evidence, if any

exists.22

22 The Dissent in favor of affirmance frames this remand as “forgiv[ing]” the
Commonwealth and providing it an “excuse” by imposing “a heavy burden” on Appellee
challenging the constitutionality of Revised Subchapter H. Dissenting Op. at 2 (Donohue,
J., dissenting). Respectfully, it is not an excuse but our constitutional duty to impose that
burden in order to uphold the separation of powers between this Court and the General
Assembly. Indeed, as detailed above, we defer policy making determinations to the
legislative branch absent a challenger’s demonstration that those determinations result in
a statute that clearly, palpably and plainly violates the constitutional rights of citizens.
Shoul, 173 A.3d at 678. For the reasons set forth above, we conclude that the current
record does not meet that burden and accordingly remand for further determinations.

Rather than remanding, the Dissent in favor of affirmance independently examines the
scientific evidence cited by the Commonwealth and determines that it supports the
conclusion that prior precedents have been mistaken regarding the high rates of
recidivism relied upon to support sexual offender laws. Dissenting Op. at 2 (Donohue, J.,
dissenting). As support, the Dissent correctly quotes the study referenced by the
Commonwealth as acknowledging “a substantial gulf between the sexual recidivism rates
observed in the empirical studies and the rates supposed by the laity and endorsed by
the [United States] Supreme Court.” Id. at 16 (quoting Scurich at 4).

The authors of the study, however, do not concede the validity of that gap in terms of
actual recidivism as opposed to the recidivism observed in some studies. Instead, without
endorsing a specific reoffense rate or taking a “position on the propriety of sexual offender
legislation[,]” they nevertheless “question challenges to that legislation to the extent [the
challenges] are based on current empirical assertions that sexual offender recidivism is
‘low.’” Scurich at 4. The paper then sets forth various factors of the empirical studies,
such as those relied upon by Appellee, that underestimate the recidivism rate of sexual
offenders.

We generally agree with the Dissent’s analysis that “the relevant question should not be
whether convicted sexual offenders are committing unreported sexual crimes, but rather
whether sexual offenders commit more sexual crimes than other groups not subject to
similar registration laws.” Dissenting Op. at 18 (Donohue, J., dissenting). We respectfully
disagree, however, with the Dissent’s conclusion that the legislature’s finding that sexual
offenders pose a higher risk of recidivation has “been debunked,” id, to such a degree as
to justify overturning the legislature’s policy determination that “[s]exual offenders pose a
high risk of committing additional sexual offenses and protection of the public from this
type of offender is a paramount governmental interest.” 42 Pa.C.S. § 9799.11(a)(4).

[J-104-2019] - 42
 However, reversal is likewise inappropriate because it was the Commonwealth’s

tactics at the post-sentence hearing that potentially prevented the necessary

development of the record. As noted, the Commonwealth forwarded an argument that

the trial court did not have authority to overturn the legislative policy determinations based

upon the proffered scientific evidence, an argument we refuted in J.B. and continue to

reject today. As stated above, the courts of this Commonwealth have the inherent

authority as a co-equal branch to strike legislative acts if they violate the rights protected

by our Constitutions. J.B., 107 A.3d at 14 (citing Nixon v. Com. Dept. of Pub. Welfare,

839 A.2d 277, 286 (Pa. 2003)).

We recognize that the Commonwealth parties relied upon our recent statement in

Muniz, 164 A.3d at 1217, rejecting similar expert evidence calling into question the

legislature’s assessment of sexual offender recidivism risks and the effectiveness of tier-

based registration systems. In light of this reliance, we emphasize that all cases are

evaluated on the record created in the individual case. Thus, a court need not ignore new

scientific evidence merely because a litigant in a prior case provided less convincing

evidence. Indeed, this Court will not turn a blind eye to the development of scientific

research, especially where such evidence would demonstrate infringement of

constitutional rights.

Nevertheless, we also emphasize that it will be the rare situation where a court

would reevaluate a legislative policy determination, which can only be justified in a case

Instead, we deem it prudent to remand for further hearing to allow the parties to proffer
evidence and argument regarding whether Appellee’s scientific evidence sufficiently
undermines the fact-finding foundation of the legislative policy determinations. As
discussed above, we emphasize that the present case is distinguishable from J.B., where
the research presented by the juvenile defendants was corroborated by a growing body
of caselaw which emphasized the rehabilitative aspects of juveniles and the distinctions
between adult and juvenile offenders generally, see supra at 14-15.

[J-104-2019] - 43
involving the infringement of constitutional rights and a consensus of scientific evidence

undermining the legislative determination. We reiterate that while courts are empowered

to enforce constitutional rights, they should remain mindful that “the wisdom of a public

policy is one for the legislature, and the General Assembly's enactments are entitled to a

strong presumption of constitutionality rebuttable only by a demonstration that they

clearly, plainly, and palpably violate constitutional requirements.” Shoul, 173 A.3d at 678.

As is apparent from the trial court findings, the evidence presented by Appellee

provides a colorable argument to debunk the settled view of sexual offender recidivation

rates and the effectiveness of tier-based sexual offender registration systems underlying

the General Assembly’s findings as well as various decisions of this Court and the United

States Supreme Court. Nevertheless, as the trial court did not have the benefit of the

opposing science, if any, the evidence currently in the record does not provide a sufficient

basis to overturn the legislative determination. Accordingly, we conclude that the proper

remedy is to remand to the trial court to provide both parties an opportunity to develop

arguments and present additional evidence and to allow the trial court to weigh that

evidence in determining whether Appellee has refuted the relevant legislative findings

supporting the challenged registration and notification provisions of Revised Subchapter

H.

Accordingly, we vacate that portion of the trial court’s order declaring the

registration requirements of Revised Subchapter H of SORNA unconstitutional and

remand for further proceedings in accordance with this opinion.

Justices Todd, Dougherty and Wecht join the opinion.

Justice Donohue files a dissenting opinion.

Justice Mundy files a dissenting opinion in which Chief Justice Saylor joins.

[J-104-2019] - 44