J-S37040-21
2022 PA Super 224
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TONY BOYD JR. :
:
Appellant : No. 1007 EDA 2021
Appeal from the Judgment of Sentence Entered June 23, 2020
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0005725-2018
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED DECEMBER 29, 2022
The present appeal returns to us following the Pennsylvania Supreme
Court's decision in Commonwealth v. Thorne, 276 A.3d 1192 (Pa. 2022), in
which the Court held that constitutional challenges to the lifetime registration
requirements of Revised Subchapter H of Pennsylvania’s Sexual Offender
Registration and Notification Act (SORNA II)1 implicate the legality of
sentencing and, thus, cannot be waived. See Thorne, 276 A.3d at 1194,
1198.2 Consistent with controlling precedent, we remand to the trial court for
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* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S. §§ 9799.10-9799.42.
2 In our initial memorandum decision in the above-captioned matter,
Commonwealth v. Boyd, 272 A.3d 480, 1007 EDA 2021, unpublished
memorandum (Pa. Super. filed January 18, 2022), appeal granted, vacated
by Commonwealth v. Boyd, 284 A.3d 121 (Pa. filed August 24, 2022), we
(Footnote Continued Next Page)
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further proceedings necessary to develop a factual record on the challenges
herein presented.
Appellant's constitutional challenges to the application of Revised
Subchapter H raise questions of law, as they assert that the registration
requirements of Revised Subchapter H are punitive and unduly rely on an
irrebuttable presumption that all sex offenders pose a high risk of future
dangerousness and reoffending. See Commonwealth v. Morgan, 258 A.3d
1147, 1152 (Pa. Super. 2021) (“[w]hen an appellant challenges the
constitutionality of a statute, the appellant presents this Court with a question
of law”). As with all questions of law, our standard of review is de novo and
our scope of review is plenary. Commonwealth v. Lacombe, 234 A.3d 602,
608 (Pa. 2020).
Appellant’s challenges are identical to those raised and addressed in
Commonwealth v. Torsilieri, 232 A.3d 567 (Pa. 2020). In Torsilieri, our
Supreme Court observed that the defendant, who, like Appellant, was not
deemed an SVP, had presented to both the trial court and our Supreme Court
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affirmed judgment of sentence by relying on Commonwealth v. Snyder, 251
A.3d 782 (Pa. Super. 2021) (holding constitutional challenges to Subchapter
H not properly raised for the first time on appeal are waived). Subsequently,
having disavowed Snyder’s holding on this issue with its Thorne decision,
the Pennsylvania Supreme Court entered a per curiam order granting
Appellant’s petition for allowance of appeal, vacating our order affirming
judgment of sentence, and remanding this matter for reconsideration in light
of Thorne. See Boyd, 284 A.3d 121.
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on direct appeal 3 “colorable constitutional challenges”—accompanied by three
expert affidavits—to Revised Subchapter H. Indeed, the trial court declared
Revised Subchapter H unconstitutional on the basis of this evidence, and our
Supreme Court acknowledged that the record and party briefs submitted on
appeal comprised citations to scientific evidence offered by both the defendant
and Commonwealth.
Nevertheless, our Supreme Court determined it was “unable to conclude
based upon the record . . . before [it] whether [the defendant] had sufficiently
undermined the validity of the legislative findings supporting . . . Revised
Subchapter H’s registration and notification provisions, especially in light of
contradictory scientific evidence cited by the Commonwealth . . . .” Id. at
585. It then explained why it was unable to declare as a matter of law that
Revised Subchapter H is invalid and why remand to the trial court for further
development of facts through additional evidence and argument was
necessary to consider the defendant’s claims:
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.
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3 The Commonwealth filed a direct appeal to the Pennsylvania Supreme Court,
invoking the Supreme Court’s jurisdiction over decisions from the Courts of
Common Pleas declaring statutes unconstitutional, pursuant to 42 Pa.C.S.A.
§ 722(7).
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...
[We] also emphasize that it will be the rare situation where a court
would reevaluate a legislative policy determination, which can
only be justified in a case involving the infringement of
constitutional rights and a consensus of scientific evidence
undermining the legislative determination. We reiterate that while
courts are empowered to enforce constitutional rights, they should
remain mindful that the wisdom of a public policy is one for the
legislature, and the General Assembly’s enactments are entitled
to a strong presumption of constitutionality rebuttable only by a
demonstration that they clearly, plainly, and palpably violate
constitutional requirements.
...
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 585, 596 (internal citations and quotations marks omitted).4
Torsilieri is on all fours with the instant appeal, where the parties
likewise cite to conflicting scientific studies bearing on the validity of Revised
Subchapter H’s registration and notification rubric. Because Appellant only
developed his constitutional arguments for the first time on appeal, the trial
court did not receive evidence and argument relating to the issues raised and
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4 This Court recently rejected claims asserting that we may venture beyond
our Supreme Court's ruling in Torsilieri and uphold constitutional challenges
to Revised Subchapter H as a matter of law in the absence of factual
development: 1) demonstrating a consensus of scientific evidence disproving
the legislature's presumptions concerning the risk of re-offense or 2)
establishing the clear proof needed to overcome a statutory declaration that
a provision is not punitive. See Commonwealth v. Wolf, 276 A.3d 805, 813
(Pa. Super. 2022).
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disputed, and we are thus without a factual record necessary to dispose of
Appellant’s claims.
Therefore, in accordance with Torsilieri, we remand to the trial court
to hold an evidentiary hearing on the constitutional challenges to SORNA II,
Revised Subchapter H that Appellant has raised before this Court. See
Commonwealth v. Mickley, 240 A.3d 957 (Pa. Super. 2020) (remanding
pursuant to Torsilieri); Commonwealth v. Asher, 244 A.3d 27 (Pa. Super.
2020) (same); Commonwealth v. Escabal, 1928 EDA 2021, 2022 WL
6643947, unpublished memorandum (Pa. Super. filed October 11, 2022)
(same).5
Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2022
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5 Under Pennsylvania Rule of Appellate Procedure 126(b), nonprecedential
decisions (referring to unpublished memorandum decisions of the Superior
Court) filed after May 1, 2019, may be cited for their persuasive value.
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