J-A03017-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JERRY CHAI :
:
Appellant : No. 135 WDA 2018
Appeal from the Judgment of Sentence September 25, 2017
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0005246-2014
BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER*, J.
MEMORANDUM BY SHOGAN, J.: FILED: APRIL 13, 2021
Appellant, Jerry Chai, appeals from the judgment of sentence entered
on September 25, 2017, following his conviction for indecent assault without
consent, 18 Pa.C.S. § 3126(a)(1). After careful review, we affirm.
We set forth the following factual and procedural history. On
September 14, 2014, S.F. (“Victim”) reported that Appellant had sexually
assaulted her in his apartment. Victim was a college freshman at Seton Hill
University, and Appellant was attending the Lake Erie School of Osteopathic
Medicine at Seton Hill University. Following a three-day criminal trial, wherein
Appellant argued, inter alia, that the sexual assault was a consensual
encounter, a jury found Appellant guilty of one count of indecent assault
without consent. On September 25, 2017, the trial court sentenced Appellant
to two years of probation and required him to comply with the reporting
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* Retired Senior Judge assigned to the Superior Court.
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requirements of the Sexual Offender Registration and Notification Act, 42
Pa.C.S. §§ 9799.10–9799.41 (“SORNA/Act 10”).
Immediately following sentencing, Appellant filed a post-sentence
motion. Post-Sentence Motion, 9/25/17.1, 2 In that motion, Appellant sought
a new trial on the grounds that Juror Number Ten (“Juror Ten”), an individual
who had worked with victims of sexual assault, introduced prejudicial extrinsic
evidence into the jury deliberations in violation of Appellant’s “Right of
Confrontation, of Cross-Examination, and of Counsel, thus [depriving
Appellant] of his constitutional right to an impartial jury.” Id. at 2. Appellant
alleged that after the trial, three jurors (Jurors Four, Six, and Eleven)
approached defense counsel and indicated that Juror Ten introduced
prejudicial facts not of record into the deliberations. Id. at 3. Appellant
retained a licensed private investigator, who, after speaking with the three
jurors, obtained notarized affidavits regarding Juror Ten’s statements. Id.
Appellant also argued that the verdict was against the weight of the evidence.
Id. at 15. In support of this claim, Appellant argued that the verdict was
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1 On July 24, 2017, Appellant had filed a Notice of Intent to Seek an Oral
Motion for Extraordinary Relief Pursuant to Pennsylvania Rule of Criminal
Procedure 704(B)(1). His motion for extraordinary relief was denied on
August 25, 2017, without prejudice to file the same request as a post-sentence
motion. Thus, Appellant’s counsel brought his post-sentence motion to the
sentencing and filed it immediately afterwards.
2 Appellant did not raise the legality or constitutionality of his sentence as it
relates to SORNA/Act 10 in his post-sentence motion or during the hearing on
that motion.
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contrary to the weight of the evidence because the only evidence implicating
Appellant was Victim’s “unreliable and untrustworthy” testimony. Id. at 16.
The court held a hearing on Appellant’s motion immediately after
sentencing on September 25, 2017. During the hearing, Appellant presented
the testimony of the three jurors. Juror Four testified that Juror Ten “either
volunteered or worked with rape victims” and that Juror Ten “could tell by the
body language that the…[Victim] was having while she was giving her
testimony, that she was being – that she was emotionally damaged by the
incident that happened, and that she related that to working with rape
victims.” N.T.(Sentencing and Post Sentence Motion hearing), 9/25/17, at 23.
Juror Four further testified that Juror Ten mentioned several times that she
worked with rape victims, and articulated her belief that Appellant was guilty
based on Victim’s body language. Id. at 23, 27. Juror Six testified that Juror
Ten brought up her experience with rape victims “every five, ten minutes,”
that Juror Ten concluded Appellant was guilty based on Victim’s and
Appellant’s body language, and she seemed to believe Appellant was guilty
before any deliberations occurred. Id. at 33–35. Finally, Juror Eleven testified
that Juror Ten said, “Something along the lines as she had worked with rape
victims and seen, like, their emotions, you know, was able to tell whether or
not they were a victim.” Id. at 41. Juror Eleven further testified that Juror
Ten said she had worked with rape victims and based on Victim’s body
language, Juror Ten concluded that Appellant was guilty. Id. at 42–43.
Following briefing by the parties, the trial court denied Appellant’s post-
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sentence motion on January 4, 2018. Appellant filed a timely appeal with this
Court. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following questions for our review:
I. Did the trial court abuse its discretion by denying the motion
for a new trial when Juror #10, who through her employment
had contact with alleged victims of sexual assault, introduced
prejudicial extrinsic evidence into jury deliberations and
thereby deprived [Appellant] of his constitutional right to a
fair trial in violation of Article 1, Section 9 of the Pennsylvania
Declaration of Rights and the Sixth Amendment of the United
States Constitution?
II. Did the lower court [abuse] its discretion in denying
[Appellant] a new trial where it could have found that the
verdict was not contrary to the weight of the evidence if it
ignored the unrefuted, objective evidence, or gave it equal
weight with the subjective facts relevant to the question of
[Appellant] acted intentionally, knowingly or recklessly
regarding the victim’s purported non-consent?
III. Did the trial court err in imposing an illegal sentence by
requiring [Appellant] to register under SORNA?
A. Did the court err in imposing the registration,
notification and counseling requirements under SORNA
for a period of fifteen years, which exceeds the
statutory maximum penalty for Indecent Assault, a
Misdemeanor 2 offense under 18 Pa.C.S.
§ 3126(a)(1)?
B. Did the court err in imposing SORNA’s requirements,
which violate due process rights, and constitute
unusual punishment in violation of the Pennsylvania
and United States Constitutions?
Appellant’s Brief at 5.
In support of his first issue, Appellant argues that the foundational
principle of the jury system is “that every litigant who is entitled to a jury trial
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is entitled to an impartial jury, free to the furthest extent practicable from
extraneous influences that may subvert the fact-finding process.” Appellant’s
Brief at 38 (quoting Carter by Carter v. U.S. Steel Corp., 604 A.2d 1010,
1015 (Pa. 1992)). Appellant further avers that an impartial jury requires that
all of its members are free from bias and that those members decide the case
based on the evidence before them. Appellant’s Brief at 38. Appellant asserts
that Juror Ten’s statements regarding Victim’s in-court behavior and body
language constituted impermissible expert testimony. Id. at 41. Specifically,
Appellant points to Juror Ten’s statements that she worked with rape victims,
compared Victim’s body language with the body language she observed while
working with rape victims, and determined that Victim was a real victim and
that Appellant was guilty. Id. at 41–42. Appellant posits that the statements
made by Juror Ten were not part of her personal experience, but instead
constituted extraneous advice. Id. at 40. Further, according to Appellant,
Juror Ten’s statements constitute expert testimony regarding the credibility of
Victim, which is prohibited by 42 Pa.C.S. § 5920(b)(3) (“The witness’s opinion
regarding the credibility of any other witness, including the victim, shall not
be admissible.”). Appellant’s Brief at 42. Because Juror Ten’s comments bring
the validity of the guilty verdict into question, Appellant argues he should be
awarded a new trial. Id. at 46.
Our standard of review is as follows:
The refusal of a new trial on the grounds of alleged misconduct of
a juror is largely within the discretion of the trial judge. When the
facts surrounding the possible misconduct are in dispute, the trial
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judge should examine the various witnesses on the question, and
his findings of fact will be sustained unless there is an abuse of
discretion.
Commonwealth v. Pope, 14 A.3d 139, 145 (Pa. Super. 2011) (quoting
Commonwealth v. Russel, 665 A.2d 1239, 1243 (Pa. Super. 1995)).
Additionally, in this Commonwealth, a court will not allow jurors to impeach
their own verdict. Commonwealth v. Messersmith, 860 A.2d 1078, 1085
(Pa. Super. 2004). Specifically, this Court has held:
[We] cannot accept the statement of jurors as to what transpired
in the jury room as to the propriety or impropriety of a juror’s
conduct. To do so, would destroy the security of all verdicts and
go far toward weakening the efficacy of trial by jury, so well
grounded in our system of jurisprudence. Jurors cannot impeach
their own verdict. Their deliberations are secret and their
inviolability must be closely guarded. Only in clear cases [of]
improper conduct by jurors, evidenced by competent testimony,
should a verdict, which is fully supported by the evidence, be set
aside and a new trial granted.
Messersmith, 860 A.2d at 1084–1085. This rule is known as the no
impeachment rule. Id. at 1085. There is a narrow exception to the no
impeachment rule which allows “post trial testimony of extraneous influences
which might have affected (prejudiced) the jury during their deliberations.”
Id. (quoting Pittsburgh Nat’l Bank v. Mut. Life Ins. Co., 425 A.2d 383,
386 (Pa. 1981)). “Extraneous information has been defined as information
that was not provided in open court or vocalized by the trial court via
instructions.” Messersmith, 860 A.2d at 1085. Although a juror may testify
to the existence of an outside influence, he or she may not testify to the effect
the outside influence had on the deliberations or the subjective reasoning
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processes. Id. Finally, because a trial court may not consider evidence
relating to the subjective impact of the extraneous information, the test for
determining the prejudicial impact of that information is an objective one; the
trial court must determine how an “objective, typical juror would be affected
by such an influence.” Id. We have further explained:
[o]nce the existence of a potentially prejudicial extraneous
influence has been established by competent testimony, the trial
judge must assess the prejudicial effect of such influence. Carter,
604 A.2d at 1016. In determining the reasonable likelihood of
prejudice, the trial judge should consider: (1) whether the
extraneous influence relates to a central issue in the case or
merely involves a collateral issue; (2) whether the extraneous
influence provided the jury with information they did not have
before them at trial; and (3) whether the extraneous influence
was emotional or inflammatory in nature. Id. at 1016–1017. This
Court has held that where the extraneous evidence is not new,
but rather is evidence that was presented at trial, prejudice is not
established. See Orndoff v. Wilson, 760 A.2d 1 (Pa. Super.
2000).
Messersmith, 860 A.2d at 1085 (quoting Pratt v. St. Christopher’s Hosp.,
824 A.2d 299, 303 (Pa. Super. 2003)).
In its opinion, the trial court looked to the standard criminal jury
instructions given to the jury and applied them to the statements made by
Juror Ten in the instant case. Trial Court Opinion, 1/4/18, at 3–4. The trial
court stated:
In standard criminal jury instruction number 4.17 titled “credibility
of witnesses,” two of the questions posed to the jury were “Did
the witness testify in a convincing manner? [How did [she] look,
act, and speak while testifying? [...].” PA-JICRIM 4.17 (2016).
Also, using standard criminal jury instruction 2.04, the jury was
told to “[o]bserve each witness as he or she testifies [and] [b]e
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alert for anything in the witness’s own testimony or behavior [...]
that might help [...] judge the truthfulness, accuracy, and weight
of his or her testimony.” PA-JICRIM 2.04 (2016). Pursuant to
these two instructions, Juror #10 was permitted to observe the
body language exhibited by [Victim] and apply it in deliberations
to determine her credibility and truthfulness, just as each of the
remaining eleven jurors were permitted to do. Since
interpretation of a witness’ body language was allowed under the
applicable jury instructions, Juror #10’s reliance on those
instructions does not fall within the extraneous information
exception to the No Impeachment Rule.
Although [Appellant] agrees that a juror can use body language
to determine credibility, [Appellant] argues that Juror #10’s
particular reliance on [Victim’s] body language qualified as an
expert opinion. This was because she stressed her work with
sexual assault victims and how that work impacted her ability to
know how an actual victim of sexual assault would react.
However, this [c]ourt is not convinced that Juror #10’s reliance
on her past work experience qualifies as an expert opinion. In
standard criminal jury instruction 7.05, the jurors were instructed
that “in deciding the facts, [they] may properly apply common
sense and draw upon [their] own everyday, practical knowledge
of life as each of [them] has experienced it.” PA-JICRIM 7.05
(2016). Juror #10 merely drew upon her own every day, practical
knowledge in weighing the credibility of [Victim’s] testimony. It
appears to this [c]ourt that her statements regarding her past
work experience were used to explain to the other jurors why she
reached the conclusion she did regarding [Victim’s] credibility,
rather than to bring in an extraneous influence. Each juror was
told that they could observe [Victim’s] body language and use that
body language to determine credibility. Each juror was allowed to
rely on their own personal knowledge in making that credibility
determination. Therefore, the testimony presented regarding
Juror #10 failed to establish the existence of extraneous
information that would justify this [c]ourt in applying an exception
to the No Impeachment Rule.
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Id. at 3–4. The trial court further found that even if Juror Ten presented
extraneous information, that information did not satisfy the three-prong test
set forth in Messersmith, discussed supra.
As the trial court properly determined, the credibility of Victim was a
central issue in the case, thereby satisfying the first Messersmith prong.
Trial Court Opinion, 1/4/18, at 4. The court noted, however, “that the body
language of [Victim] was evidence presented at trial, as each juror was
instructed that they could consider the witnesses’ body language, along with
their own personal knowledge and common sense” to determine whether
Victim was credible in her testimony. Id. Thus, Juror Ten’s opinion regarding
Victim’s body language did not constitute information the jury did not have
before them; rather, it was her opinion based upon her personal experience.
Id. This sort of information does not run afoul of the second prong in
Messersmith requiring that the extraneous influence provide the jury with
information they did not have before them at trial. Messersmith, 860 A.2d
at 1085 See, e.g., Orndoff, 760 A.2d at 3-4 (finding no error where the
allegedly extraneous information given to the jury by a juror was contained in
evidence presented at trial; thus it was not new information). Similarly, Juror
Ten’s statements did not offer any new information to the jury regarding
Victim’s actual body language-she was giving her opinion based upon her
observations and personal experience-which she was permitted to do pursuant
to the jury instructions. Finally, the trial court found that the third
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Messersmith prong was not satisfied because Appellant failed to present any
evidence that Juror Ten’s statements were emotional or inflammatory. Id. at
5.
Following our own careful review of the testimony presented by Jurors
Four, Six, and Eleven, we find that the trial court did not abuse its discretion
when it denied Appellant’s motion for a new trial on the grounds that Juror
Ten provided prejudicial extrinsic evidence to the jury.3
In his second issue, Appellant argues that the trial court erred when it
denied him a new trial because the verdict was contrary to the weight of the
evidence. Appellant’s Brief at 46. Appellant further avers that the
Commonwealth failed to meet its burden of proving that Appellant knew Victim
did not consent or that Appellant disregarded a substantial risk that Victim did
not consent to their encounter. Id. at 50 (citing Commonwealth v. Carter,
418 A.2d 537 (Pa. Super. 1980)). Appellant also asserts that the testimony
of Victim was unreliable and untrustworthy and that the Commonwealth’s
evidence showed that Victim “wasn’t certain of her own feelings and intentions
with respect to [Appellant].” Appellant’s Brief at 50. Appellant posits that
Victim’s actions following the alleged assault “were as consistent with those
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3 To the extent Appellant argues that Juror Ten’s opinion regarding Victim’s
body language constituted an expert opinion, we reject that argument. As
discussed above, Juror Ten provided her opinion based upon her personal life
experience, as she was instructed to do by the trial court. This does not
constitute expert testimony. See Pa.R.E. 702.
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of a victim of nonconsensual sex,” as with someone who felt guilt, shame and
regret “for allowing things to go as far as they did, and who realized that being
with a [replacement for her ex-paramour] only resulted in her feeling worse
about herself.” Id. at 54.
An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the
evidence. Brown, 648 A.2d at 1189. Because the
trial judge has had the opportunity to hear and see
the evidence presented, an appellate court will give
the gravest consideration to the findings and reasons
advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the
weight of the evidence. Commonwealth v.
Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976).
One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that
the verdict was or was not against the weight of the
evidence and that a new trial should be granted in the
interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis in
original) (quoting Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa.
2000)). The Clay Court further described the trial court’s discretion as
follows:
The term “discretion” imports the exercise of judgment, wisdom
and skill so as to reach a dispassionate conclusion within the
framework of the law, and is not exercised for the purpose of
giving effect to the will of the judge. Discretion must be exercised
on the foundation of reason, as opposed to prejudice, personal
motivations, caprice or arbitrary actions. Discretion is abused
where the course pursued represents not merely an error of
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judgment, but where the judgment is manifestly unreasonable or
where the law is not applied or where the record shows that the
action is a result of partiality, prejudice, bias or ill-will.
Clay, 64 A.3d at 1055 (quoting Widmer, 744 A.2d at 753).
In its opinion, the trial court noted, pursuant to standard criminal jury
instruction 4.13(B), that
the testimony of the victim standing alone, if believed, is sufficient
proof upon which to find the defendant guilty in this case. The
testimony of the victim in a case such as this need not be
supported by other evidence to sustain a conviction. Thus a juror
may find the defendant guilty if the testimony of the victim
convinces him or her beyond a reasonable doubt that the
defendant is guilty.
Trial Court Opinion, 1/4/18, at 7 (quoting PA-JICRIM 4.13(B) (2016)). The
court further noted that the jury’s decision in the instant case turned on the
credibility of Victim and Appellant, both of whom provided testimony regarding
the incident, and whether the encounter was consensual. Trial Court Opinion,
1/4/18, at 7. Ultimately, the trial court found that because the testimony of
Victim was sufficient for the jury to rely on to sustain the conviction, if they
found her testimony credible, the verdict was not against the weight of the
evidence. Id. at 8. Indeed, “this Court has long-recognized that the
uncorroborated testimony of a sexual assault victim, if believed by the trier of
fact, is sufficient to convict a defendant, despite contrary testimony from
defense witnesses.” Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa.
Super. 2006); see also Commonwealth v. Gonzalez, 109 A.3d 711, 721
(Pa. Super. 2015) (It is well established that “[t]he victim’s uncorroborated
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testimony is sufficient to support a rape conviction.”). Here, the jury found
Victim’s testimony to be credible and chose not to believe Appellant’s version
of the events. “It was within the province of the jury, as fact-finder, to resolve
all issues of credibility, resolve conflicts in evidence, make reasonable
inferences from the evidence, believe all, none, or some of the evidence, and
ultimately adjudge appellant guilty.” Charlton, 902 A.2d at 562. Given the
above, the trial court did not err in its exercise of discretion when it found that
Appellant’s conviction was not against the weight of the evidence.
In his final issue, which is separated into two parts, Appellant avers that
the trial court erred when it imposed an illegal sentence because it required
him to register as a sexual offender for a period of fifteen years under
SORNA/Act 10.4 In support of the first part, Appellant argues that his fifteen-
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4 42 Pa.C.S. §§ 9799.10, et seq. This Court provided the following brief
history of SORNA/Act 10 in Commonwealth v. Reslink, __A.3d__, 2020 PA
Super. 289, n.8 (Pa. Super. filed December 18, 2020):
SORNA was originally enacted on December 20, 2011, effective
December 20, 2012. See Act of Dec. 20, 2011, P.L. 446, No. 111,
§ 12, effective in one year or Dec. 20, 2012 (Act 11 of 2011). Act
11 was amended on July 5, 2012, also effective December 20,
2012, see Act of July 5, 2012, P.L. 880, No. 91, effective Dec. 20,
2012 (Act 91 of 2012), and amended on February 21, 2018,
effective immediately, known as Act 10 of 2018, see Act of
Feb. 21, 2018, P.L. 27, No. 10, §§ 1-20, effective Feb. 21, 2018
(Act 10 of 2018), and, lastly, reenacted and amended on June 12,
2018, P.L. 140, No. 29, §§ 1-23, effective June 12, 2018 (Act 29
of 2018). Acts 10 and 29 of 2018 are generally referred to
collectively as SORNA II. Through Act 10, as amended in Act 29
(collectively, SORNA II), the General Assembly split SORNA I's
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year registration requirement constitutes a direct criminal punishment, in
violation of Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).
Appellant’s Brief at 58. Appellant posits that at most, his registration period
must be limited to less than two years, the lawful maximum sentence for his
conviction. Appellant’s Brief at 61. In the second part, Appellant argues that
the requirements under SORNA/Act 10 infringe on his protected right to
reputation without due process of law. Id. at 65. Appellant further avers that
the registration requirement constitutes cruel and unusual punishment. Id.
at 69.
Appellant first argues that the trial court erred when it imposed an illegal
sentence upon him. Appellant’s Brief at 58. Specifically, Appellant argues
that according to Muniz, SORNA/Act 10 constitutes direct criminal
punishment; thus, the fifteen-year registration requirement exceeds the
maximum punishment for his offense, a second degree misdemeanor, which
shall not be more than two years of imprisonment. Appellant’s Brief at 58
(citing 18 Pa.C.S. §§ 1104(2), 3126(a)(1)). Appellant further asserts that
although the legislature made changes to SORNA/Act 10 in response to
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former Subchapter H into a Revised Subchapter H and Subchapter
I. Subchapter I addresses sexual offenders who committed an
offense on or after April 22, 1996, but before December 20, 2012.
See 42 Pa.C.S.A. §§ 9799.51-9799.75. Subchapter I contains less
stringent reporting requirements than Revised Subchapter H,
which applies to offenders who committed an offense on or after
December 20, 2012. See 42 Pa.C.S.A. §§ 9799.10-9799.42.
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Muniz, there is “little daylight between the two schemes,” and given that
SORNA/Act 10 does not meaningfully alter those requirements, it should be
viewed as punishment and not a collateral criminal consequence. Appellant’s
Brief at 61. Because the maximum sentence for Appellant’s conviction was
two years of imprisonment, Appellant argues that the longest he lawfully could
have been required to register is two years. Id.
As Appellant acknowledges, this Court reviewed a similar challenge in
Commonwealth v. Strafford, 194 A.3d 168 (Pa. Super. 2018). In that case,
the appellant was convicted of Indecent Assault of a Person less than 13 years
of age, Corruption of a Minor, and Involuntary Deviate Sexual Intercourse with
a Child. Id. at 171. The appellant was classified as a Tier III offender, which
required lifetime registration as a sex offender. Id. On appeal, the appellant
argued that the lifetime registration requirement exceeded the statutory
maximum sentences applicable to his convictions. Id. at 172. This Court
rejected the appellant’s argument, finding that although terms of incarceration
and probation may not exceed the maximum allowable terms, “most
sentencing alternatives are not tied to the maximum authorized term of
incarcerations.” Id. at 172–173. We then analogized the registration
requirements under SORNA/Act 10 to the sentencing alternatives of fines and
restitution, as authorized by 18 Pa.C.S. § 1101 (relating to fines) and 18
Pa.C.S. § 1106 (relating to restitution). Strafford, 194 A.3d at 173.
Specifically, we found as follows,
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In SORNA the legislature authorized courts to include
periods of registration as part of a sentence. Similar to the
treatment of the payment of fines or restitution, the legislature
did not tie the period of registration to the length of incarceration.
See 42 Pa.C.S. § 9799.14 (“Sexual offenses and tier system”); 42
Pa.C.S. § 9799.15 (“Period of registration”). SORNA’s registration
provisions are not constrained by Section 1103[, relating to
maximum terms of imprisonment for felony convictions]. Rather,
SORNA’s registration requirements are an authorized punitive
measure separate and apart from Appellant’s term of
incarceration. The legislature did not limit the authority of a court
to impose registration requirement only within the maximum
allowable term of incarceration; in fact, that legislature mandated
the opposite and required court to impose registration
requirements in excess of the maximum allowable terms of
incarceration.
Strafford, 194 A.3d at 173. Ultimately, we held, “Appellant’s lifetime
registration requirement authorized by SORNA does not constitute an illegal
sentence.” Id. It is well-settled that “[t]his Court is bound by existing
precedent under the doctrine of stare decisis and continues to follow
controlling precedent as long as the decision has not been overturned by our
Supreme Court.” Commonwealth v. Reed, 107 A.3d 137, 143 (Pa. Super.
2014). This reasoning is on point and defeats Appellant’s argument.
Appellant also argues for the first time on appeal that SORNA/Act 10 is
unconstitutional because it infringes on his protected right to reputation
without due process of law. Appellant’s Brief at 65. Specifically, Appellant
asserts that SORNA/Act 10’s registration requirements are “premised on the
presumption that all sexual offenders pose a high risk of recidivating, impinge
upon that fundamental right.” Id. Appellant further avers that the irrefutable
premise violates due process when “the presumption is deemed not
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universally true and reasonable alternative means of ascertaining that
presumed fact are available.” Id. (quoting In re J.B., 107 A.3d 1, 14-15 (Pa.
2014)). Appellant then lists research alleging that the presumption of
dangerousness of sex offenders is not universally true and cites to evidence
that allegedly confirms that most convicted offenders pose little risk and abide
by standards of conduct. Appellant’s Brief at 66.
This Court recently reviewed a similar constitutional challenge to
Subchapter H of SORNA/Act 10. See Reslink, 2020 PA Super. 289. In
Reslink, the appellant was convicted of two counts of indecent assault-person
less than 13 years of age. The appellant was classified as a Tier III offender,
but was not found to be a sexually violent predator. Id. at *1. In that case,
the appellant did not file a post-sentence motion. Id. On appeal, he raised a
challenge to the constitutionality of Subchapter H of SORNA/Act 10 on the
grounds that it “creates ‘an irrefutable presumption against the offender,’” and
violates “federal and state constitutional prohibitions against cruel and
unusual punishment.” Id. at *3. This Court found that the appellant waived
the issue because he failed to raise it “before the trial court, in a motion to
bar application of SORNA, or in post-sentence motions.” Id. at *4. In
reaching that decision, we noted that it “is well-settled that issues not raised
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before the trial court cannot be advanced for the first time on appeal.”5 Id.
(citing Pa.R.A.P. 302(a)). The fact that the appellant raised a constitutional
claim did not alter this Court’s analysis. See id. (citing In re F.C. III, 2 A.3d
1201, 1212 (Pa. 2010)) (finding appellant’s constitutional claims waived
where he failed to raise them before the trial court, depriving that tribunal of
the opportunity to consider and rule on them); see also Commonwealth v.
Howe, 842 A.2d 436, 441 (Pa. Super. 2004) (“[C]onstitutional issues,
including sentencing issues based upon the constitution, are waived if they
are not properly raised in the trial court.”).
Appellant failed to raise his constitutional challenges to SORNA/Act 10
before the trial court; thus, we are constrained to find he has waived those
claims.
Judgment of sentence affirmed.
Judge Strassburger joins the Memorandum.
Judge Bowes files a Concurring Memorandum.
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5 A challenge to the constitutionality of a sentence must be properly raised
before the trial court, in a post-sentence motion, or in the instant context, a
motion to bar application of SORNA/Act 10, or else that issue is waived.
Reslink, 2020 Pa. Super. 289, *4. In contrast, a challenge to the legality of
sentence cannot be waived, may be raised sua sponte by the court, and must
be vacated. Commonwealth v. Randall, 837 A.2d 1211, 1214 (Pa. Super.
2003).
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J-A03017-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/13/2021
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