J-S08019-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAVAN S. OUTTERBRIDGE :
:
Appellant : No. 1175 MDA 2021
Appeal from the Judgment of Sentence Entered May 26, 2021
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0004813-2019
BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY NICHOLS, J.: FILED: JULY 27, 2022
Appellant Javan S. Outterbridge appeals from the judgment of sentence
imposed following his convictions for aggravated indecent assault and related
offenses. Appellant argues that the trial court erred in concluding that he was
required to register under Subchapter H of the Sexual Offender Registration
and Notification Act1 (SORNA). We affirm.
By way of background, Appellant was convicted of one count of
aggravated indecent assault and two counts each of involuntary deviate sexual
intercourse, statutory sexual assault, corruption of minors, and indecent
assault.2 On May 26, 2021, the trial court sentenced Appellant to an
aggregate term of five to ten years’ incarceration followed by thirteen years’
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1 42 Pa.C.S. §§ 9799.10-9799.42.
218 Pa.C.S. §§ 3125(a)(8), 3123(a)(7), 3122.1(a)(1), 6301(a)(1)(ii), and
3126(a)(8), respectively.
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probation. The Sexual Offender Assessment Board (SOAB) concluded that
Appellant was not a sexually violent predator (SVP). However, Appellant was
designated a Tier III offender and ordered to comply with Subchapter H’s
lifetime registration requirements.
Appellant filed a timely post-sentence motion in which he claimed that
because he was a non-SVP offender, “the presumption upon which his
obligations under SORNA are founded has not been proven and that imposition
of those obligations violates Due Process under the law, and is unconstitutional
under both the [Pennsylvania] and [United States] constitutions.” Post-
Sentence Mot., 7/9/21, at 2 (unpaginated). Appellant also argued that “the
statutory irrebuttable presumption underlying SORNA, that is that all sex
offenders are likely to commit additional sexual offenses, is not supportable
in the instant case but is in fact unsupported by scientific evidence.” Id.
(citing Commonwealth v. Torsilieri, 232 A.3d 567 (Pa. 2020)).
Following a hearing on August 2, 2021,3 the trial court denied
Appellant’s motion. Appellant filed a timely notice of appeal and a court-
ordered Pa.R.A.P. 1925(b) statement. The trial court issued a Rule 1925(a)
opinion addressing Appellant’s claims.
Appellant raises the following issues on appeal:
1. Whether the automatic registration requirements of
Subchapter H of SORNA constitute an illegal sentence that
violates the due process clause of the United States and
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3 The transcript from this proceeding was not included in the certified record
transmitted to this Court on appeal.
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Pennsylvania Constitutions because they are impermissibly
punitive, based on an irrebuttable false presumption, and do
not require a finding of guilt beyond a reasonable doubt.
2. Whether Appellant’s being sentenced to a term of registration
as a sex-offender was also more specifically illegal in that—as
he was determined not to be a[n SVP], by virtue of not being
considered “likely to engage in predatory sexually violent
offenses” it was illogical and contradictory of neighboring
provisions of the same SORNA statute to sentence him to a
term of registration as a sex-offender by virtue of his being
“likely to engage in predatory sexually violent offenses.”
Appellant’s Brief at 5.
In his first claim, Appellant argues that Subchapter H’s automatic
registration requirements constitute an illegal sentence. Id. at 11. In
support, Appellant asserts that “Subchapter H violates Pennsylvania’s due
process protections through the unconstitutional use of an irrebuttable
presumption,” which “implicates ‘both procedural and substantive due process
protections.’” Id. at 11 (quoting Torsilieri, 232 A.3d at 581). Appellant also
argues that Subchapter H is impermissibly punitive and that “the ‘registration
requirements, which can result in lifetime branding an offender as at high risk
of recidivation, violat[e] the requirements of Apprendi and Alleyne.’”4 Id.
at 11-12 (quoting Torsilieri, 232 A.3d at 582) (footnotes omitted). However,
Appellant contends that “empirical analysis is not necessary” to resolve his
Subchapter H claims, as Pennsylvania courts have “made it repeatedly and
exhaustively clear, by specific factual findings and legal determinations made
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4Apprendi v. New Jersey, 530 U.S. 466 (2000); Alleyne v. United States,
570 U.S. 99 (2013).
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in several appeals of SVP hearings, that not all adult sex offenders pose a high
risk of recidivation.” Id. at 18. Therefore, Appellant asks us to resolve his
challenge to Subchapter H as a matter of law. Id. at 13.
Appellant’s claims “raise questions of law for which our standard of
review is de novo and our scope of review is plenary.” Torsilieri, 232 A.3d
at 575 (citation omitted). In resolving such claims, our Supreme Court has
explained that
[i]n 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. (some citations omitted).
Initially, we note that Appellant’s instant claims are identical to those
raised by the defendant in Torsilieri. In Torsilieri, the defendant claimed
that the registration and notification provisions in Subchapter H were
unconstitutional and violated his right to due process, as they utilized an
irrebuttable presumption of future dangerousness and recidivism. See
Torsilieri, 232 A.3d at 574-75. The defendant also argued that Subchapter
H was punitive and “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
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premised upon proof beyond a reasonable doubt.” Id. at 575 (citation and
quotation marks omitted).
The trial court conducted a hearing at which the defendant introduced
three expert affidavits to establish his claim. However, the Commonwealth
did not offer any evidence to the contrary. Id. at 574. Ultimately, after the
trial court issued an order declaring Subchapter H unconstitutional, the
Commonwealth appealed directly to our Supreme Court, which has exclusive
jurisdiction over matters in which courts of common pleas declare statutes
unconstitutional. Id. at 572; see also 42 Pa.C.S. § 722(7).
On appeal before our Supreme Court, the Commonwealth introduced
evidence to dispute Appellant’s irrebuttable presumption claim. In reviewing
the trial court’s order, the Torsilieri Court separated the defendant’s claims
into two categories: (1) the irrebuttable presumption challenge; and (2)
whether Subchapter H’s lifetime registration provisions violated the
requirements of Apprendi and Alleyne, imposed sentences in excess of the
statutory maximum sentence, constituted cruel and unusual punishment, and
violated the separation of powers doctrine by preventing trial courts from
imposing individualized sentences. Torsilieri, 232 A.3d at 581-82.
With respect to the irrebuttable presumption claim, the Torsilieri Court
concluded that the defendant raised “colorable constitutional challenges” to
Subchapter H based on the evidence presented to and relied on by the trial
court. Id. at 584. However, the Torsilieri Court explained:
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Nevertheless, we are unable to conclude based upon the record
currently before this Court whether [the defendant] has
sufficiently undermined the validity of the legislative findings
supporting . . . 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 [the defendant’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 address whether a consensus has developed to call into
question the relevant legislative policy decisions impacting
offenders’ constitutional rights.
Id. at 585 (footnote omitted).
After Torsilieri was decided, this Court has remanded cases for further
proceedings in matters where the defendant preserved an irrebuttable
presumption claim before the trial court but did not have an opportunity to
fully develop his claims at a hearing. See, e.g., Commonwealth v. Asher
244 A.3d 27, 33 (Pa. Super. 2020); Commonwealth v. Mickley, 240 A.3d
957, 961-62 (Pa. Super. 2020).
More recently, while the instant appeal was pending, a panel of this
Court issued a decision in Commonwealth v. Wolf, --- A.3d ---, 2022 PA
Super 98, 2022 WL 1698704 (Pa. Super. filed May 27, 2022). In Wolf, the
appellant claimed that Subchapter H “violate[d] his due process rights, and
constitute[d] an illegal sentence, because it [was] ‘impermissibly punitive,
based on an irrebuttable false presumption, and [did] not require a finding of
guilt beyond a reasonable doubt.’” Id. at *2 (citation omitted). Although the
appellant’s substantive claims were identical to the issues raised in Torsilieri,
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the Wolf Court noted that, unlike the defendant in Torsilieri, the appellant
sought relief “as a matter of law without further evidentiary development.”
Id. (citations omitted).
In rejecting the appellant’s claim, the Wolf Court explained:
In the case at bar, [the a]ppellant faults the Torsilieri Court for
remanding the case. According to [the a]ppellant, the remand
order was “utterly unnecessary . . . to resolve issues that could
have been simply and efficiently resolved by legal analysis alone.”
Indeed, although [the a]ppellant raised his constitutional claims
in a post-sentence motion and the trial court held a hearing on
the motion, [the a]ppellant did not request that the post-sentence
motion hearing be transcribed and, on appeal, [the a]ppellant
claims that his constitutional claims may be decided as a matter
of law. Torsilieri is on all fours with the case at bar and, in
accordance with Torsilieri, [the a]ppellant’s claim on appeal fails.
* * *
We will not venture beyond our Supreme Court’s holding in
Torsilieri. In Torsilieri, the Supreme Court concluded that the
defendant’s scientific evidence “presented a colorable argument
that the General Assembly’s factual presumptions have been
undermined by recent scientific studies” – and, even though the
Commonwealth did not present any contrary evidence during the
post-sentence motion hearing – the Supreme Court still concluded
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., 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.’” Torsilieri,
232 A.3d at 594 (citations omitted). In the case at bar, [the
a]ppellant simply asks that we hold Revised Subchapter H’s
registration provisions unconstitutional as a matter of law. Given
that our Supreme Court, in Torsilieri, refused to hold Revised
Subchapter H unconstitutional despite uncontradicted evidence
presented by the defendant, we too refuse to hold the statutes
unconstitutional where [the a]ppellant has presented no evidence,
whatsoever, to “demonstrate a consensus of scientific evidence as
was present to find a presumption not universally true in J.B., nor
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the ‘clearest proof’ needed to overturn the General Assembly’s
statements that the provisions are not punitive.” See id. at 594
(citations omitted).
Id. at *5-6 (some citations omitted).
Here, as in Wolf, although Appellant raised his Subchapter H claims
before the trial court, he failed to present any evidence of scientific studies to
support his irrebuttable presumption claim. Likewise, Appellant presents no
evidence to this Court on appeal. Instead, Appellant asks us to resolve his
Subchapter H claim as a matter of law. However, without any evidence of
scientific studies, Appellant cannot make “a colorable argument that the
General Assembly’s factual presumptions have been undermined by recent
scientific studies[.]” See Torsilieri, 232 A.3d at 594. Therefore, Appellant
has failed to satisfy his burden to prove that the Revised Subchapter H
provisions applicable to him “clearly, palpably, and plainly” violate the
constitution. See id. at 575; see also Wolf, 2022 WL 1698704 at *6.
In his second claim, Appellant argues that his “own case is proof that
the irrebuttable presumption on which SORNA’s registration[ ] requirements
depend is false.” Appellant’s Brief at 36. Appellant asserts that because he
was designated as a non-SVP offender, he is “not likely to engage in predatory
sexually violent offenses.” Id. at 37. Therefore, Appellant concludes that “a
sentence requiring him to register as a sex-offender is therefore even more
obviously illegal and unconstitutional and must be vacated.” Id. at 38.
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In Wolf, this Court addressed a claim identical5 to the one Appellant
now raises on appeal. In resolving that issue, the Wolf Court explained:
[The a]ppellant’s claim fails. In Torsilieri, the defendant was also
“not designated an SVP” and the Supreme Court still concluded
that the defendant did not “demonstrate a consensus of scientific
evidence as was present to find a presumption not universally true
in J.B., nor the ‘clearest proof’ needed to overturn the General
Assembly’s statements that the provisions are not punitive.”
Torsilieri, 232 A.3d at 594. Again, in the case at bar, [the
a]ppellant invites us to go beyond Torsilieri’s holding and
conclude that the registration statutes are, as a matter of law,
unconstitutional on their face. We decline [the a]ppellant’s
invitation. Torsilieri binds this Court and [the a]ppellant’s claim
fails, as [the appellant’s] unsupported challenge does not
“demonstrate a consensus of scientific evidence as was present to
find a presumption not universally true in J.B., nor the ‘clearest
proof’ needed to overturn the General Assembly’s statements that
the provisions are not punitive.” See Torsilieri, 232 A.3d at 594.
Wolf, 2022 WL 1698704 at *7.
Based on our review of the record, we conclude that this Court’s decision
in Wolf is dispositive of Appellant’s claim. As in Wolf, Appellant’s irrebuttable
presumption claim is premised on the fact that he was not classified as an
SVP. However, as this Court noted in Wolf, Appellant’s non-SVP status does
not establish that Subchapter H is unconstitutional. See id.; see also
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5 Beyond the substitution of names and other minor details, Appellant’s brief
is practically identical to the appellate brief filed by the appellant in Wolf.
Additionally, it appears that both Appellant and the Wolf appellant were both
represented by the same attorney from the Berks County Office of the Public
Defender.
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Torsilieri, 232 A.3d at 594. Therefore, Appellant is not entitled to relief.
Accordingly, we affirm.6
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/27/2022
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6 We note that while the instant matter was pending, our Supreme Court
issued its decision in Commonwealth v. Thorne, --- A.3d ---, 20 WAP 2021,
2022 WL 2231821 (Pa. filed June 22, 2022), which held that our “legality of
sentencing jurisprudence—i.e., that challenges implicating the legality of a
sentence cannot be waived—applies equally to constitutional challenges to
Revised Subchapter H of SORNA.” See Thorne, 2022 WL 2231821 at *1.
The Thorne Court also explained that its holding “would have no meaning if
individuals seeking to challenge Revised Subchapter H on constitutional
grounds were required to present evidence in support thereof during [the]
underlying criminal proceedings in order to preserve the issue.” Id. at *5
n.13 (emphasis added).
Here, we do not find that Appellant waived his Subchapter H claims, nor do
we conclude that he failed to adequately preserve his issues because he did
not present evidence before the trial court. Instead, we conclude that because
Appellant did not present any evidence to establish his claims, either before
the trial court or on appeal, he has failed to meet his burden to prove that
Subchapter H is unconstitutional. Therefore, we conclude that Thorne is
distinguishable. Compare Thorne, 2022 WL 2231821 at *1, with Torsilieri,
232 A.3d at 594, and Wolf, 2022 WL 1698704 at *6.
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