Com. v. Snyder, C.

J-S35012-20

2021 PA Super 63

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER SNYDER :
:
Appellant : No. 2060 EDA 2019

Appeal from the Judgment of Sentence Entered June 20, 2019
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-2658-2018

BEFORE: BOWES, J., STABILE, J., and COLINS, J.*

OPINION BY BOWES, J.: FILED: APRIL 9, 2021

Christopher Snyder appeals from his June 20, 2019 judgment of

sentence imposed after a jury found him guilty of corruption of minors,

indecent assault without consent, indecent assault of person unconscious, and

indecent assault with a person less than thirteen years of age. After careful

review, we affirm Appellant’s conviction, affirm in part and vacate in part

Appellant’s judgment of sentence, and remand for resentencing.

The trial court provided the following factual summary of this case:

In the fall of 2017, [Appellant] was living in a house with the then
12-year-old victim, S.F., along with the victim’s family . . . .
[Appellant] was a close friend to S.F.’s father and a close friend to
the entire family.

One night, S.F. was awoken from sleep to [Appellant] rubbing her
inner leg and vaginal area. At first[,] she was confused about

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* Retired Senior Judge assigned to the Superior Court.
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what was happening, and looked at him and said, “What are you
doing?” [Thereafter, Appellant left her room.]

S.F. was scared to tell her family about what happened. A couple
of months after the assault in February of 2018, S.F. was able to
open up to some school friends. The incident came to [S.F.’s
mother’s] attention when she received a phone call from the
school principal.

The matter was reported to law enforcement. S.F. spoke to
Detective Gloria Hatcher of the Horsham Township Police
Department. S.F. was also interviewed by Meghan Kerper of the
Mission Kids Child Advocacy Center.

On March 12, 2019, [Appellant] proceeded to a jury trial where at
the conclusion thereof a jury found him guilty of the
aforementioned charges.

Trial Court Opinion, 9/18/19, at 1-2.

A jury trial commenced on March 12, 2019. At its conclusion, the jury

found Appellant guilty of the aforementioned charges. On July 20, 2019, he

was sentenced to nine to twenty months of imprisonment followed by eight

years of probation. As part of his sentence, Appellant was ordered to pay

$500 in non-mandatory fines along with the costs of prosecution.

Appellant was also found to be subject to lifetime tier-based registration

under Subchapter H of the Pennsylvania Sentencing Code as a consequence

of his conviction under 18 Pa.C.S. § 3126(a)(7). See 42 Pa.C.S. §§

9799.14(d)(8), 9799.15(a)(3) (categorizing indecent assault against a

complainant “less than 13 years of age” as a Tier III offense, which requires

registration for “the life of the individual”). Appellant was determined not to

be a sexually violent predator (“SVP”), and he filed no post-sentence motions.

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Appellant filed a timely appeal to this Court. Both he and the trial court

timely complied with their obligations under Pa.R.A.P. 1925. Appellant raises

the following issues for our consideration:

1. Were [Appellant’s] due process rights violated when the
Commonwealth set forth a four-month date range in the Bills of
Information to prosecute him for a single incident but then shifted
at trial the timeframe in which they alleged the single incident
occurred, after the defense presented alibi evidence that covered
dates in the Bills of Information?

2. Did the trial court commit a reversible error when it denied the
requested prompt complaint instruction?

3. Was the portion of the sentence requiring [Appellant] to comply
with [Subchapter H] illegal because the applicable statute, 42
Pa.C.S. §§ 9799.10-[.]41, violates both the Pennsylvania and
Federal Constitutions?

4. Did the sentencing court err in assigning [Appellant] the costs
of prosecution and a fine of $500 without consideration of his
ability to pay?

Appellant’s brief at 3.

Appellant’s first issue concerns the dates listed on the information filed

by the Commonwealth, which he characterizes as a claim arising under

Commonwealth v. Devlin, 333 A.2d 888, 890 (Pa. 1975) (“[T]he date of

the commission of the offense must be fixed with reasonable certainty.”). This

claim concerns the sufficiency of the evidence adduced by the Commonwealth,

over which our standard and scope of review is well-established:

When reviewing the sufficiency of the evidence, we must
determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient

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to prove every element of the offense beyond a reasonable doubt.
The facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to accord each
witness’ testimony and to believe all, part or none of the evidence.
The Commonwealth may sustain its burden by proving every
element of the crime by means of wholly circumstantial evidence.
As an appellate court, we may not re-weight the evidence and
substitute our judgment for that of the fact-finder.

Commonwealth v. Steele, 234 A.3d 840, 845 (Pa.Super. 2020) (internal

quotation marks and citations omitted).

Appellant’s argument implicates the timeline presented in the

Commonwealth’s information, which he claims differed from the evidence at

trial. See Appellant’s brief at 11-12 (“[T]he dates on [the information] were

not only arbitrary, but almost completely separate and distinct from the dates

the Commonwealth attempted to prove at trial.”). In pertinent part, the

information set forth allegations that Appellant committed these offenses

within a date range of November 1, 2017 through March 6, 2018. Appellant

contends that the Commonwealth misled Appellant by “abandoning” these

dates at trial after Appellant presented an alleged alibi. Id. Thus, Appellant

asserts that this purported chronological shift invalidated his alibi defense.

See Appellant’s brief at 14-15 (quoting Devlin, supra at 891 n.1) (“[A]

variance between the allegations of the indictment and the proof offered at

trial will not be deemed fatal ‘unless it could mislead the defendant at trial,

involves an element of surprise prejudicial to the defendant’s efforts to

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prepare his defense, precludes the defendant from anticipating the

prosecution’s proof, or impairs a substantial right.’”).

The content and function of criminal informations is governed by

Pennsylvania Rule of Criminal Procedure 560, which provides as follows with

respect to allegations concerning the dates of charged offenses:

(A) After the defendant has been held for court following a
preliminary hearing or an indictment, the attorney for the
Commonwealth shall proceed by preparing an information and
filing it with the court of common pleas.

(B) The information shall be signed by the attorney for the
Commonwealth and shall be valid and sufficient in law if it
contains:

....

(3) the date when the offense is alleged to have been committed
if the precise date is known, . . ., provided that if the precise date
is not known or if the offense is a continuing one, an allegation
that it was committed on or about any date within the period fixed
by the statute of limitations shall be sufficient . . . .

Pa.R.Crim.P. 560. Consistent with this statutory language, the dates set forth

in an information do not inextricably bind the Commonwealth to that timeline:

[T]he date laid in the indictment is not controlling, but some other
reasonably definite date must be established with sufficient
particularity to advise the jury and the defendant of the time the
Commonwealth alleges the offense was actually committed, and
to enable the defendant to know what dates and period of time he
must cover if his defense is an alibi[.]

Devlin, supra at 890.

We are also mindful of the following legal principles regarding the

Commonwealth’s burden to establish a reliable date as to the offense:

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It is the duty of the prosecution to fix the date when an alleged
offense occurred with reasonable certainty[.] The purpose of so
advising a defendant of the date when an offense is alleged to
have been committed is to provide him with sufficient notice to
meet the charges and prepare a defense.

However, due process is not reducible to a mathematical formula,
and the Commonwealth does not always need to provide a specific
date of an alleged crime. Additionally, indictments must be read
in a common sense manner and are not to be construed in an
overly technical sense. Permissible leeway regarding the date
provided varies with, inter alia, the nature of the crime and the
rights of the accused. See Pa.R.Crim.P. 560(B)(3)

Commonwealth v. Brooks, 7 A.3d 852, 857-58 (Pa.Super. 2010) (internal

quotation marks and some citations omitted).

While acknowledging that the victim in this case was unable to provide

a precise date for the assault, we also note that “[w]hen a young child is the

victim of a crime, it is often impossible to ascertain the exact date when the

crime occurred. . . . If such children are to be protected by the criminal justice

system, a certain degree of imprecision concerning times and dates must be

tolerated.” Commonwealth v. Jette, 818 A.2d 533, 535 (Pa.Super. 2003)

(citing Commonwealth v. Groff, 548 A.2d 1237, 1242 (Pa.Super. 1988)).

Thus, “for the purposes of a Devlin claim, the Commonwealth must be

allowed a reasonable measure of flexibility when faced with the special

difficulties involved in ascertaining the date of an assault upon a young child.”

Groff, supra at 1241.

Reviewing the certified record in this case, we cannot agree with

Appellant’s assertions that the Commonwealth’s allegations at trial were

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fatally dissimilar from those contained in the information. While the

Commonwealth could not provide a precise date, the victim averred that the

assault took place in the fall of 2017, while Appellant was living with the

family. See N.T. Trial, 3/12/19, at 53-55. When pressed for details by both

the Commonwealth and the defense, the victim clarified that the assault had

taken place sometime from November 2 through November 22, 2017. Id. at

53-55, 70, 83. This testimony is in complete parity with the timeline averred

in the criminal information filed by the Commonwealth. Stated simply, there

is no discrepancy in the dates provided on the information and the evidence

collectively presented at trial by the parties.

Moreover, Appellant’s alibi explicitly relied upon the Commonwealth’s

timeline to rebut the assault allegations and asserted this defense at trial in a

manner that was fully consistent with the chronology set forth in the

Commonwealth’s information and trial evidence. Indeed, Appellant’s own

testimony acknowledges that the assault allegations were centered upon

November 2017. See, e.g., N.T. Trial, 3/13/19, at 21, 24, 26. Appellant has

“never asserted how the lack of specificity in the information or victim[‘s]

testimony rendered him unable to prepare a defense to the charges brought

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against him.” Brooks, supra at 859-60. Accordingly, we reject his

insinuation that the Commonwealth hindered him in presenting a defense.1

Viewing the evidence in the light most favorable to the Commonwealth,

we find that it established the date of Appellant’s offense with “reasonable

certainty” under Devlin and its progeny. Brooks, supra at 859-60 (finding

a victim’s testimony sufficient to support the Commonwealth’s information

where the document averred that the defendant committed “sex offenses . . .

during the summer months of 2001” and one of the victims testified at trial

that “she recalled the abuse occurring when it was warm outside and she was

wearing shorts”); see also Groff, supra at 1242 (holding victim’s testimony

that alleged abuse had taken place “during the summer of 1985” was sufficient

pursuant to Devlin). No relief is due.2

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1 Appellant claims that he “was no longer living with the complainant” at the
time of the assault. See Appellant’s brief at 15. Appellant also introduced an
unnamed receipt for household goods to establish that he had renovated and
moved into a more-remote part of the victim’s home in August 2017. These
assertions oversimplify the living arrangements of the involved parties. The
testimony at trial indicated that Appellant had moved from an upstairs
bedroom to a “separate apartment” that was attached to the house, but which
had its own entrance. See N.T. Trial, 3/12/19, at 106-07.
2 Appellant argues that we should subject the victim’s allegations to an
increased level of scrutiny under Devlin simply by virtue of the fact that there
was only a single incident of sexual assault. See Appellant’s brief at 15
(“While the Commonwealth is given leeway in setting a date range for
continuing courses of criminal behavior, this Court should be wary of over-
extending that flexibility in the context of singular acts.”). Contrary to
Appellant’s unsupported argument, the leeway granted to the Commonwealth
in cases involving the allegations of child victims is not limited to cases
involving continuous courses of conduct. No such bifurcated approach is
present in, or supported by, the relevant case law.

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Appellant’s second claim concerns the trial court’s refusal to issue a

“prompt complaint” jury charge in this case. See Appellant’s brief at 15-18.

“[O]ur standard of review when considering the denial of jury instructions is

one of deference—an appellate court will reverse a court’s decision only when

it abused its discretion or committed an error of law.” Commonwealth v.

Cannavo, 199 A.3d 1282, 1286 (Pa.Super. 2018). “A charge is considered

adequate unless the jury was palpably misled by what the trial judge said or

there is an omission which is tantamount to fundamental error. Consequently,

the trial court has wide discretion in fashioning jury instructions.”

Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa.Super. 2006).

Appellant requested that the trial court issue a prompt complaint jury

instruction in light of the victim having delayed disclosure of the assault for

“approximately four months.” See N.T. Trial, 3/13/19, at 6. The

Commonwealth demurred that the victim’s young age and testimony as to her

lack of immediate comprehension regarding the nature of the assault augured

in favor of not issuing the instruction. Id. at 9-10. The Commonwealth also

noted that Appellant had served in a “parental role” by taking care of the

victim when her parents were out of the house. Id. at 10. The trial court

agreed that “the factors weigh in favor of not giving the instruction.” Id. at

11. We find no fault in the trial court’s refusal to give the instruction.

Our General Assembly has addressed the issue of prompt complaints

from victims of crime, as follows:

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Prompt reporting to public authority is not required in a
prosecution under this chapter: Provided, however, [t]hat nothing
in this section shall be construed to prohibit a defendant from
introducing evidence of the complainant’s failure to promptly
report the crime if such evidence would be admissible pursuant to
the rules of evidence.

18 Pa.C.S. 3105. Consistent with this statutory language, this Court has

explained that “[t]he prompt complaint instruction is based upon a belief that

a victim of a violent assault would reveal the assault occurred at the first

available opportunity.” Thomas, supra at 970. However,

[t]he propriety of a prompt complaint instruction is determined on
a case-by-case basis pursuant to a subjective standard based
upon the age and condition of the victim. For example, where the
victim of a sexual assault is a minor who may not have appreciated
the offensive nature of the conduct, the lack of a prompt complaint
would not necessarily justify an inference of fabrication. This is
especially true where the perpetrator is one with authority or
custodial control over the victim.

Id. (internal citations and quotation marks omitteds).

Appellant asserts that the trial court committed reversible error in

declining to issue the requested instruction, which he claims “would have

imparted knowledge to the jury that the law offered support for Appellant to

question the reliability of the complainant’s untimely complaint.” Appellant’s

brief at 18. We note, however, that this line of argument is not responsive to

the threshold factors undergirding the trial court’s ruling: the age and

disposition of the victim. Accord Thomas, supra at 970. The touchstone

regarding the propriety of issuing a prompt complaint instruction to the jury

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is not whether it is beneficial to the defendant, but whether it is warranted

under the facts of the case.3

We believe Appellant’s case is fairly analogous to Commonwealth v.

Snoke, 580 A.2d 295 (Pa.Super. 1990), wherein a five-year-old victim

delayed reporting a sexual assault perpetrated by her father for approximately

five months. In finding no fault with the trial court’s refusal to give a prompt

complaint instruction, this Court opined as follows:

Where no physical force is used to accomplish the reprehensible
assault, a child victim would have no reason to promptly complain
of the wrong-doing, particularly where the person involved is in a
position of confidence. Where such an encounter is of a nature
that a minor victim may not appreciate the offensive nature of the
conduct, the lack of a complaint would not necessarily justify an
inference of a fabrication.

Id. at 299. Thus, this Court held that the trial court did not err in declining

to issue a prompt complaint jury instruction in Snoke despite the victim’s five-

month delay in reporting a non-violent sexual assault.

The trial court explicitly cited these factors in declining to issue a prompt

complaint instruction. See N.T. Trial, 3/13/19, at 10-11. As in Snoke, this

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3 As part of his discussion of this issue, Appellant asserts that the trial court
erred by instructing the jury that the victim’s testimony, if believed, was
sufficient to convict Appellant of the charged offenses. See Appellant’s brief
at 17. Appellant’s assertion ignores that it is well-established under
Pennsylvania law that “the uncorroborated testimony of the complaining
witness is sufficient to convict a defendant of sexual offenses.”
Commonwealth v. Cramer, 195 A.3d 594, 602 (Pa.Super. 2018). We
discern no error in the trial court’s instruction.

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case involves a minor victim who was frightened and lacked a firm

understanding of the objectionable nature of Appellant’s actions. S.F. was

twelve years old at the time of the assault in this case, and she testified to

being “confused” and “[s]cared” in the aftermath of the assault. 4 See N.T.

Trial, 3/12/19, at 60-62. Furthermore, Appellant had a close relationship with

S.F. and her family. Specifically, the victim’s mother testified that Appellant

was often left “alone” to supervise the victim and her brother, i.e., in a position

of confidence or custodial control. Id. at 103. We also note that Appellant’s

actions do not appear to have been physically violent.

Given the victim’s disposition, the extent of Appellant’s relationship with

her family, and the nature of the assault itself, the lack of a prompt complaint

in this case does not reasonably lead to an inference of falsehood or fabrication

on the part of the victim. Thus, we discern no legal error or abuse of discretion

in the trial court’s refusal to issue the requested jury instruction. See, e.g.,

Thomas, supra, at 970; Snoke, supra at 299.

We turn now to Appellant’s third issue, wherein he has asserted for the

first time on appeal that Subchapter H of the Pennsylvania Sentencing Code

violates the United States and Pennsylvania Constitutions.5 See Appellant’s

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4 Appellant had an opportunity to cross-examine the victim at length
regarding the timeline of her disclosure. See N.T. Trial, 3/12/19, at 72-81.

5 Appellant’s arguments are directed at the constitutionality of the various
iterations of Pennsylvania’s sexual offender registration regime. In

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brief at 19-36. Specifically, Appellant’s arguments implicate constitutional

issues that were discussed at length in our Supreme Court’s holding in

Commonwealth v. Torsilieri, 232 A.3d 567 (Pa. 2020).

____________________________________________

Commonwealth v. Muniz, 164 A.3d 1189, 1193 (Pa. 2017), superseded by
statute as stated in, Commonwealth v. Lacombe, 234 A.3d 602, 607 n.4
(Pa. 2020), our Supreme Court declared these registration requirements were
“punitive,” and therefore could not be retroactively applied to individuals
whose offenses predated enactment of the statute. Shortly thereafter, this
Court relied upon Muniz to conclude that the provisions of the statute
applicable to sexually violent predators (“SVPs”), were also unconstitutional.
See Commonwealth v. Butler, 173 A.3d 1212, 1218 (Pa.Super. 2017)
(“Butler I”), reversed by, 226 A.3d 972 (Pa. 2020) (“Butler II”).

In response, the General Assembly passed significant amendments to SORNA
that are commonly referred to as Acts 10 and 29. See Butler II, supra at
981 n.11. These legislative enactments bifurcated the regulatory scheme into
two subchapters: (1) Subchapter H, or the statute formerly known as SORNA,
which was amended to be applicable to individuals whose crimes were
committed after December 20, 2012; and (2) Subchapter I, a new section of
the Sentencing Code, which was drafted to be applicable to offenders whose
predicate crimes were committed between April 22, 1996, and December 20,
2012. See 42 Pa.C.S. §§ 9799.11(c), 9799.52(1)-(2). Following these
amendments, our Supreme Court held in Lacombe, supra at 626-27, that
the registration requirements of Subchapter I do not constitute punishment.
The High Court also overruled Butler I and held that the registration
requirements of Subchapter H applicable to SVPs also do not constitute
punishment. Butler II, supra at 993.

Neither Lacombe nor Butler II is applicable to Appellant’s case. Lacombe
is inapposite because Appellant is not within the class of registrants covered
by Subchapter I, as his offense was committed after December 20, 2012.
Additionally, “as Butler II involves provisions related to the SVP designation
process, it is not relevant to [Appellant], who was not designated an SVP.”
Commonwealth v. Torsilieri, 232 A.3d 567, 572 n.2 (Pa. 2020). Until an
authoritative ruling, the constitutionality of Subchapter H as to non-SVP
offenders such as Appellant remains an unanswered question. Id. at 596.

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The constitutionality of a statute presents a “pure question of law,” over

which our standard of review is de novo and our scope of review is plenary.

Commonwealth v. Brooker, 103 A.3d 325, 334 (Pa.Super. 2014). Our

Supreme Court has also offered the following discussion of the burden borne

by those seeking to invalidate a statutory scheme on constitutional grounds:

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.

Torsilieri, supra at 575.

A brief review of the holding in Torsilieri is necessary to properly

characterize Appellant’s claims in this case. Torsilieri challenged his

registration requirements under Subchapter H in post-sentence proceedings.

The linchpin of his arguments consisted of expert scientific evidence indicating

that “sexual offenders generally have low recidivism rates and questioning the

effectiveness of sexual offender registration systems[.]” Id. at 574. Based

largely upon this evidence, the trial court declared Subchapter H

unconstitutional under a number of interrelated theories, including that

Subchapter H impaired Torsilieri’s “right to reputation” under the Pennsylvania

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Constitution6 by utilizing an “irrebuttable presumption” that all registrants

pose a high risk of recidivism. Id. at 574-75.

The Torsilieri trial court also concluded Subchapter H was “punitive”

pursuant to the seven factors set forth in Kennedy v. Mendoza-Martinez,

372 U.S. 144 (1963).7 Id. at 588-94. This conclusion “inevitably resulted” in

a number of additional rulings:

[T]he trial court concluded that (1) [Subchapter H] violated the
dictates of [Alleyne v. U.S., 570 U.S. 99 (2013), and Apprendi
v. New Jersey, 530 U.S. 466 (2000),8] 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 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) [Subchapter H] violated the separation of
powers doctrine by encroaching upon the judiciary’s fact-finding
and individualized sentencing responsibilities.
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6 “[E]very man for an injury done him in his lands, goods, person or reputation
shall have remedy by due course of law, and right and justice administered
without sale, denial or delay.” PA. CONST. Art. 1, § 11.

7 The seven factors set forth in Kennedy v. Mendoza-Martinez, 372 U.S.
144, 168-69 (1963), examine whether the at-issue sanction: (1) involves an
affirmative disability or restraint; (2) has historically been regarded as a
punishment; (3) comes into play only on a finding of scienter; (4) will promote
the traditional aims of punishment—retribution and deterrence; (5) applies to
behavior that is already a crime; (6) has an alternative purpose that is
rationally connected and assignable to it, and (7) appears excessive in relation
to the alternative purpose assigned.

8 “Any fact that, by law, increases the penalty for a crime is an ‘element’ that
must be submitted to the jury and found beyond a reasonable doubt.”
Alleyne v. U.S., 570 U.S. 99, 103 (2013) (citing Apprendi v. New Jersey,
530 U.S. 466, 483 n.10, 490 (2000)).

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Id. at 594.

On direct appeal, our Supreme Court determined that the trial court had

correctly considered Torsilieri’s scientific evidence. Id. at 584. However, the

High Court ultimately remanded the case for further development of the

record and arguments:

[A]s 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 [Torsilieri]
has refuted the relevant legislative findings supporting the
challenged registration and notification provisions of Revised
Subchapter H.

Id. at 596 (emphasis added). Thus, the holding in Torsilieri did not announce

any new substantive law, but merely set the stage for future proceedings.

Unlike Torsilieri, Appellant did not raise his claims of constitutional

dimension before the trial court. Rather, he first raised these arguments in

his Rule 1925(b) concise statement, wherein he asserted a panoply of claims

for relief that mirror those presented by the defendant in Torsilieri. See

Appellant’s Rule 1925(b) Statement, 8/7/19, at ¶ 6(a)-(h). “[C]onstitutional

issues, including sentencing issues based upon the constitution, are waived if

they are not properly raised in the trial court.” Commonwealth v. Howe,

842 A.2d 436, 441 (Pa.Super. 2004); see also Pa.R.A.P. 302(a) (“Issues not

raised in the trial court are waived and cannot be raised for the first time on

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appeal.”). Indeed, this Court recently concluded that a defendant waived

numerous constitutional arguments concerning whether Subchapter H creates

“an irrefutable and irrebuttable presumption against the offender” by failing

to raise the claims in the trial court. See Commonwealth v. Reslink, ___

A.3d ___, 2020 WL 7415959, at *3-*4 (Pa.Super. 2020).

Appellant has characterized his claims as uniformly implicating the

legality of his sentence. See Appellant’s brief at 2-3. As a general matter,

“Rule 302(a)’s prohibition does not apply to claims of an illegal sentence.”

Commonwealth v. Hodges, 193 A.3d 428, 432-33 (Pa.Super. 2018) (citing

Commonwealth v. Barnes, 151 A.3d 121, 122 (Pa. 2016)); see also

Commonwealth v. Wolfe, 140 A.3d 651, 660 (Pa. 2016) (“Legality-of-

sentence claims are not subject to the traditional waiver doctrine.”).

Initially, we believe that Appellant’s characterization of his constitutional

arguments is overbroad.9 Many of these claims for relief concern alleged due

process violations predicated upon the Pennsylvania Constitution’s reputation

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9 “[T]his Court has rejected the idea that all constitutional cases implicating
sentencing raise legality of sentence concerns.” Commonwealth v.
Lawrence, 99 A.3d 116, 122 (Pa.Super. 2014). Rather, “the term illegal
sentence is a term of art that our Courts apply narrowly, to a relatively small
class of cases.” Id. (internal citation and quotation marks omitted). Our
Supreme Court’s jurisprudence on this issue is “equally narrow,” and generally
provides that legality of sentence is only implicated “when a sentencing court’s
inherent, discretionary authority to wield its statutorily prescribed sentencing
powers is supplanted, abrogated, or otherwise limited, . . . or the legislature’s
intent in fashioning a sentence has been potentially misapplied.”
Commonwealth v. Foster, 17 A.3d 332, 344 (Pa. 2011).

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clause. See Appellant’s brief at 19-24. However, this Court has historically

rejected attempts to style due process claims as implicating the legality of a

defendant’s sentence. See, e.g., Commonwealth v. Wallace, 533 A.2d

1051, 1053-54 (Pa.Super. 1987) (collecting cases). Moreover, our Supreme

Court held in Commonwealth v. Muniz, 164 A.3d 1189, 1195 n.7 (Pa.

2017), superseded by statute on separate grounds as recognized in

Commonwealth v. Lacombe, 234 A.3d 602, (Pa. 2020), that a defendant

waived similar arguments under the reputation clause of the Pennsylvania

Constitution by failing to raise them in the trial court.10

However, we also discern that Appellant asserts that Subchapter H is

punitive under the Mendoza-Martinez factors and, therefore, violates the

rule that “[a]ny fact that, by law, increases the penalty for a crime is an

‘element’ that must be submitted to the jury and found beyond a reasonable

doubt.” Alleyne, supra at 103; see Appellant’s brief at 24-36. Specifically,

Appellant argues that registration constitutes punishment and is imposed

based upon a fact that is not submitted to a jury and found beyond a

reasonable doubt, i.e., the presumption of recidivism present in Subchapter

H. This portion of Appellant’s argument does implicate the legality of his

sentence. See Commonwealth v. Newman, 99 A.3d 86, 90 (Pa.Super.

____________________________________________

10 In Muniz, supra at 1195 n.7, there was no indication that these claims
implicated the legality of the defendant’s sentence.

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2014) (en banc) (“[A] challenge to a sentence premised upon Alleyne likewise

implicates the legality of the sentence and cannot be waived on appeal.”).

Nevertheless, we are constrained to find waiver under Reslink. In that

case, Reslink asserted for the first time on appeal that Subchapter H creates

“an irrefutable and irrebuttable presumption against the offender,” which

renders it unconstitutional. Reslink, supra at *3. He claimed that

registration under Subchapter H constituted “cruel and unusual punishment”

and also violated Apprendi, supra at 490. Id. It is beyond cavil that such

claims implicate the legality of a defendant’s sentence. See Commonwealth

v. Newman, 99 A.3d 86, 91 (Pa.Super. 2014) (“[B]ecause a challenge to a

sentence premised upon Apprendi implicates the legality of that sentence, it

cannot be waived on appeal.”); Commonwealth v. Yasipour, 957 A.2d 734,

740 (Pa.Super. 2008) (“[A]n appellant who challenges the constitutionality of

his sentence of imprisonment on a claim that it violates his right to be free

from cruel and unusual punishment raises a legality of sentencing claim since

he is challenging the trial court’s authority in imposing the sentence.”).

However, this Court found these legality-of-sentence issues waived due to

Reslink’s failure to raise them in the trial court. See Reslink, supra at *4.

After Reslink, even assuming, arguendo, that some of Appellant’s

constitutional claims sound in legality of sentence, we are compelled to find

waiver of the balance of Appellant’s constitutional arguments. Appellant did

not raise these issues in the trial court, and Reslink has created an exception

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to the typical rules governing Rule 302(a) waiver and claims aimed at allegedly

illegal sentences.11 Thus, no relief is due on these waived issues.

Appellant’s fourth issue concerns the $500 non-mandatory fine12 and

additional costs that Appellant was ordered to pay as part of the sentence

imposed by the trial court. See N.T. Trial, 6/20/19, at 31. Specifically,

Appellant argues that the trial court erred in failing to conduct an inquiry into

his ability to pay before imposing these financial conditions. See Appellant’s

brief at 36-40. Appellant is separately challenging the propriety of imposing

both fines and costs in his case. Id. at 36-37. Accordingly, we will address

each claim in turn, beginning with the legality of the at-issue fines.

We begin our review with the following legal standards in mind:

The scope and standard of review applied to determine the legality
of a sentence are well established. If no statutory authorization
exists for a particular sentence, that sentence is illegal and subject
to correction. An illegal sentence must be vacated. In evaluating
a trial court’s application of a statute, our standard of review is
plenary and is limited to determining whether the trial court
committed an error of law.

____________________________________________

11 Although we are bound to follow Commonwealth v. Reslink, ___ A.3d
___, 2020 WL 7415959, at *3-*4 (Pa.Super. 2020), we note that Reslink
constitutes an apparent inconsistency with respect to constitutional claims
sounding in legality of sentence. As such, Reslink runs counter to well-settled
aspects of Pennsylvania law. We read Reslink for the limited proposition that
constitutional claims for relief directed at Pennsylvania’s sexual offender
registration regime that concern the presumption of recidivism discussed in
Torsilieri are subject to waiver under Rule 302(a), regardless of whether that
claim sounds in legality of sentence.

12 There is no indication that the fines imposed upon Appellant by the trial
court were mandated by statute or by law.

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J-S35012-20

Commonwealth v. Dixon, 161 A.3d 949, 951 (Pa.Super. 2017) (internal

citations and quotation marks omitted).

Generally speaking, the Pennsylvania Sentencing Code permits a trial

court to impose “[a] fine” as one of several “alternatives” available “[i]n

determining the sentence to be imposed.” 42 Pa.C.S. §§ 9721(a)(5),

9726(a)-(b). However, the Sentencing Code also provides that “[t]he court

shall not sentence a defendant to pay a fine unless it appears of record that:

(1) the defendant is or will be able to pay the fine; and (2) the fine will

not prevent the defendant from making restitution or reparation to the victim

of the crime.” 42 Pa.C.S. § 9726(c) (emphasis added).

We note that Appellant did not raise any claim challenging the

assignment of fines in the trial court. However, this Court has previously held

that “a claim raising the complete absence of evidence of the defendant’s

ability to pay [a fine] is not subject to waiver for a failure to preserve the issue

in the first instance.” Commonwealth v. Boyd, 73 A.3d 1269, 1274

(Pa.Super. 2013) (en banc); see also, e.g., Commonwealth v. Ford, 217

A.3d 824, 827 (Pa. 2019) (noting that a claim that a trial court imposed a

non-mandatory fine without conducting an ability-to-pay determination

“constitutes a nonwaiv[e]able challenge to the legality of the sentence”).

Therefore, Appellant’s allegation that the trial court failed to consider his

ability to pay before imposing non-mandatory fines implicates the legality of

his sentence and is not subject to waiver. Id.

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Appellant’s argument is straightforward and persuasively relies upon the

Supreme Court’s holding in Ford and a litany of additional decisions from this

Court. See Appellant’s brief at 36-37 (“The law is clear [that] the Court must

consider a defendant’s ability to pay fines prior to their imposition. . . . [T]he

sentencing order should be vacated and the matter remanded for

sentencing.”). There is no colorable indication in the certified record that the

trial court ever conducted an inquiry into Appellant’s ability to pay these fines.

We find Ford to be instructive in these matters. In that case, Ford

asserted, inter alia, that his sentence was illegal due to the trial court’s failure

to determine his ability to pay before imposing a number of non-mandatory

fines. Ford, supra at 828. The Commonwealth responded that Ford had

agreed to pay these non-mandatory fines as part of a negotiated guilty plea

and, thereby, obviated the need for such a determination. Id. at 829.

Ultimately, our Supreme Court held that “[t]he mere fact that a person agrees,

as part of a quid pro quo arrangement, to pay a specific sum does not

necessarily mean that he or she can (or even will be able to) make good on

that promise.” Id. Thus, the High Court concluded that the trial court had

erred in failing to conduct an ability-to-pay determination. Id.

While quibbling with various aspects of Appellant’s argument, the

Commonwealth concedes the key aspect of the holding from Ford. See

Commonwealth’s brief at 24 (“Ford simply holds that ability to pay must be

determined . . . before a court can impose non-mandatory fines.”). Likewise,

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we believe that the import of this holding is quite clear: “[T]rial courts are

without authority to impose non-mandatory fines absent record evidence that

the defendant is or will be able to pay them.” Ford, supra at 829.

Thus, we believe that Appellant is entitled to relief under Ford and

§ 9726(c)(1). The trial court erred by failing to conduct an inquiry into

Appellant’s ability to pay prior to imposing these non-mandatory fines.

Accordingly, we vacate that portion of Appellant’s sentence requiring him to

pay fines and remand for resentencing in conformity with this opinion.

Turning to that portion of Appellant’s claim concerning the trial court’s

imposition of mandatory costs without inquiring into his ability to pay, we note

that recent jurisprudence confirms that this issue also implicates the legality

of Appellant’s sentence.13 See Commonwealth v. Lehman, 201 A.3d 1279,

____________________________________________

13 As this Court noted in Commonwealth v. Gary-Ravenell, 241 A.3d 460
(Pa.Super. 2020) (en banc) (non-precedential decision at 9), there is a
nascent conflict in this Court’s case law regarding “whether a trial court’s
authority to impose costs implicates the legality of sentence.” Despite the
above-cited holdings in Commonwealth v. Lehman, 201 A.3d 1279, 1283
(Pa.Super. 2019) (“Lehman I”) and Commonwealth v. Garzone, 993 A.2d
306, 316 (Pa.Super. 2010), a different panel of this Court recently concluded
that “a direction to pay costs in a criminal proceeding is not a part of the
sentence, but is an incident of judgment.” Commonwealth v. Mulkin, 228
A.3d 913, 919 (Pa.Super. 2020). As we recognized in Gary-Ravenell, these
lines of precedent are in apparent conflict with one another.

However, in December 2020, our Supreme Court explicitly affirmed the
holding in Lehman I. See Commonwealth v. Lehman, 243 A.3d 7, 8 (Pa.
2020) (“Lehman II”). Moreover, the Supreme Court clarified that the
imposition of mandatory costs of prosecution is governed by 16 P.S. § 1403.
Id. at 9 n.3. This statute includes language indicating that defendants are

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1283 (Pa.Super. 2019), affirmed, 243 A.3d 7 (Pa. 2020) (“Because [the

defendant] challenges the trial court’s authority to impose costs . . . , we

conclude that the [defendant’s] claim implicates the legality of his

sentence[.]”); Commonwealth v. Garzone, 993 A.2d 306, 316 (Pa.Super.

2010) (same). As such, we will address the merits of this claim despite the

fact that Appellant did not raise it before the trial court.

Appellant’s specific arguments arise under Pennsylvania Rule of Criminal

Procedure 706(C), which provides that “[t]he court, in determining the

amount and method of payment of a fine or costs shall, insofar as is just and

practicable, consider the burden upon the defendant by reason of the

defendant’s financial means, including the defendant’s ability to make

restitution or reparations.” Pa.R.Crim.P. 706(C). Relying upon this provision,

Appellant asserts that the imposition of costs without consideration of his

ability to pay was improper. See Appellant’s brief at 37. We disagree.

Although artfully presented, Appellant’s substantive arguments run

counter to existing precedent, which has consistently interpreted Rule 706 as

not requiring a presentence inquiry into a defendant’s ability to pay costs.

See Ford, supra at 827 n.6 (citing Pa.R.Crim.P. 706) (“[A] presentence

____________________________________________

“sentenced” to pay the costs of prosecution, which undermines the holding in
Mulkin suggesting that costs are not a part of a sentence. See Gary-
Ravenell, supra at 9. Given the affirmance of Lehman I and the phrasing
of § 1403, we must apply the line of precedent holding that challenges to the
sentencing court’s authority to impose costs sounds in legality of sentence.

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J-S35012-20

ability-to-pay hearing is not required when costs alone are imposed.”

(emphasis in original)); see also Commonwealth v. Childs, 63 A.3d 323,

326 (Pa.Super. 2013) (“Generally, a defendant is not entitled to a pre-

sentencing hearing on his or her ability to pay costs.”).

Most recently, in Commonwealth v. Lopez, ___ A.3d ___, 2021 WL

1096376, at *1 (Pa.Super. 2021) (en banc), this Court explicitly reaffirmed

this interpretation of Pennsylvania law: “[W]hile a trial court has the discretion

to hold an ability-to-pay hearing at sentencing, Rule 706(C) only requires the

court to hold such a hearing when a defendant faces incarceration for failure

to pay court costs previously imposed on him.” Accordingly, we conclude

that Rule 706 does not require a presentence determination of Appellant’s

ability to pay before the trial court imposes costs. See Lopez, supra at *1-

*10. No relief is due.14

To summarize the foregoing discussion, we affirm Appellant’s underlying

convictions for the above-stated offenses. Based upon the trial court’s failure

____________________________________________

14 Specifically, Appellant relies upon this Court’s holding in Commonwealth
v. Martin, 335 A.2d 424 (Pa.Super. 1975) (en banc), wherein this Court found
that a trial court erred in failing to conduct an ability-to-pay determination
before imposing a substantial fine as part of a defendant’s sentence. Id. at
425-26. Appellant argues this holding should also apply as to costs.

This proffered interpretation of Pennsylvania law was explicitly rejected in
Commonwealth v. Lopez, ___ A.3d ___, 2021 WL 1096376 (Pa.Super.
2021) (en banc), wherein this Court found that “a defendant is not entitled to
an ability-to-pay hearing before a court imposes costs at sentencing.” Id. at
*10 (citing Martin, supra at 425-26). Pursuant to Lopez, the legal
distinctions between fines and costs under Pennsylvania law persist.

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to conduct a presentence ability-to-pay determination, we vacate that portion

of Appellant’s judgment of sentence requiring him to pay $500 in fines and

remand for resentencing in conformity with § 9726. In all other aspects, we

affirm Appellant’s judgment of sentence.

Convictions affirmed. Judgment of sentence affirmed in part and

vacated in part. Case remanded for resentencing. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/9/21

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