[J-104-2019] [MO: Baer, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
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 :
DISSENTING OPINION
JUSTICE MUNDY DECIDED: June 16, 2020
I respectfully disagree with the majority’s decision to remand this matter to the trial
court for further development of the record. In my view, Appellee simply failed to
demonstrate that the legislative underpinnings of Subchapter H of the Sex Offender
Registration and Notification Act (“SORNA”), 42 Pa.C.S. § 9799.10-9799.42, are
unsupported by current scientific research in a manner that would render the statute
unconstitutional. In the absence of such a finding, deference to the legislature’s policy
determinations is appropriate. Accordingly, I dissent.
Subchapter H is based upon several legislative policy determinations, including
the finding that “[s]exual offenders pose a high risk of committing additional sexual
offenses and protection from the public from this type of offender is a paramount
governmental interest.” 42 Pa.C.S. § 9799.11(a)(4). Appellee presented the affidavits
and supporting documents of three expert witnesses before the trial court challenging the
veracity of this finding and the overall effectiveness of sex offender registries. The trial
court found Subchapter H unconstitutional on various grounds, relying heavily on what it
perceived as the legislature’s faulty policy determinations. The majority declines to
address the merits of the trial court’s conclusions, instead finding that Appellee presented
a “colorable claim” that the factual underpinnings of Subchapter H “have been
undermined by scientific study[.]” Majority Op. at 40. It therefore remands for further
development of the record by both parties in order for the trial court to determine “whether
Appellee has refuted the relevant legislative findings supporting the challenged
registration and notification provisions of [ ] Subchapter H.” Id. at 42. In my view, a
remand is neither necessary nor appropriate.
Appellee presented discrete evidence from three experts demonstrating that sex
offenders are not likely to reoffend and that sex offender registries may not be an effective
tool for protecting society. He did not present evidence of a consensus regarding these
conclusions sufficient to undermine the legislature’s policy determinations. Indeed, our
legislature relied on scientific studies supporting its findings when reaching the policy
determinations that form the basis of our sex offender registration laws. The legislature
had an opportunity to reexamine these findings when it passed Subchapter H two years
ago on June 12, 2018. Having provided nothing more than a counter-narrative to the
determinations reached by our legislature, we must defer to the legislature’s findings.
Commonwealth v. Muniz, 164 A.3d 1189, 1217 (Pa. 2017) (explaining policy
determinations concerning “complex societal issues” such as the efficacy of sex offender
registration laws in preventing recidivism are matters for the legislature, especially where
there is a lack of consensus among authorities). We have acknowledged that deference
to the legislature’s policy determinations is preferable in these circumstances because of
its superior ability to compile research and examine issues of social policy. Basehore v.
[J-104-2019] [MO: Baer, J.] - 2
Hampden Indus. Dev. Auth., 248 A.2d 212, 217 (Pa. 1968) (“[C]ourts are not in a position
to assemble and evaluate the necessary empirical data which forms the basis for the
legislature’s findings.”). Accordingly, I dissent and would reverse the order of the trial
court.
Chief Justice Saylor joins this dissenting opinion.
[J-104-2019] [MO: Baer, J.] - 3