J-A21044-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN TAYLOR HOVATTER :
:
Appellant : No. 1368 EDA 2020
Appeal from the Judgment of Sentence Entered June 9, 2019
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0003051-2019
BEFORE: KUNSELMAN, J., NICHOLS, J., and STEVENS, P.J.E.*
JUDGMENT ORDER BY STEVENS, P.J.E.: FILED MARCH 7, 2023
This matter was remanded from the Pennsylvania Supreme Court for
reconsideration in light of its decision in Commonwealth v. Thorne, 276
A.3d 1192 (Pa. 2022), in which the Court held that constitutional challenges
to Revised Subchapter H of the Pennsylvania Sentencing Code, 42 Pa.C.S. §§
9799.10-.42, which properly implicate the legality of a defendant's sentence
cannot be waived.1 Id. at 1197-98. After further review, we remand to the
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* Former Justice specially assigned to the Superior Court.
1 In this Court's first adjudication of the present matter, we held, inter alia,
that Appellant's several constitutional claims regarding his registration
requirements under Subchapter H of the Pennsylvania Sentencing Code were
waived due to his failure to raise them in the trial court. On December 1,
2022, however, the Pennsylvania Supreme Court vacated our holding and
remanded to this Court for reconsideration in light of Thorne, 276 A.3d at
1197-98. See Commonwealth v. Hovatter, 264 A.3d 371 (unpublished
memorandum) (Pa. Super. filed Sept. 15, 2021) appeal granted, vacated by
Commonwealth v Hovatter, (Pa. filed Dec. 1, 2022).
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trial court for the development of a full factual record concerning Appellant's
constitutional challenges that implicate the legality of his sentence.
Our prior memorandum decision set forth pertinent facts and the initial
procedural history of this case before the trial court, which we summarize. A
then-77 year-old Appellant had befriended the female victim’s family through
church in 2015 and frequently visited their family home over the next four
years. In January 2019, the nine-year-old victim disclosed to her parents that
Appellant had touched her genitals. Following a forensic interview, Appellant
admitted he placed his hands on the victim’s vagina and anus, but only over
her clothing and with no penetration. He entered a negotiated guilty plea to
one count of Indecent Assault pursuant to 18 Pa.C.S. § 3126(a)(7). See 42
Pa.C.S. §§ 9799.14(d)(8), 9799.15(a)(3) (categorizing that the commission
of indecent assault against a complainant “less than 13 years of age” requires
registration for “the life of the individual”). Appellant was also determined not
to be a sexually violent predator (“SVP”). No post-sentence motion was filed,
and Appellant appealed to this Court. In his concise statement of errors
pursuant to Pa.R.A.P. 1925(b), Appellant raised for the first time several
claims under the United States and Pennsylvania Constitutions regarding the
validity of Revised Subchapter H.
Upon the present remand, we note that the crux of Appellant’s appeal
is a challenge that Subchapter H of Pennsylvania’s Sexual Offender
Registration and Notification Act (SORNA) 42 Pa.C.S. §§ 9799.10-9799.42
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constitutes undue punishment both facially and as applied. In this regard, he
alleges Revised Subchapter H unconstitutionally relies upon an irrebuttable
presumption that all sexual offenders are dangerous and pose a high risk of
committing additional sexual offenses. Because Appellant has raised his
issues for the first time on appeal, and they implicate the legality of sentencing
and, thus, cannot be waived, we follow the guidance of Commonwealth v.
Torsilieri, 232 A.3d 567 (Pa. 2020) and remand “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
595.
Unlike the defendant in Torsilieri, however, Appellant has not offered
any specific scientific evidence or learned testimony in support of his
position. Cf. id. at 596 (“[I]t will be a 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.”).
This Court has held that cases raising arguments in conformity
with Torsilieri are entitled to remand to the trial court for an evidentiary
hearing where the claims have been raised for the first time on appeal, thereby
precluding the creation of an adequate factual record. See Commonwealth
v. Boyd, ––– A.3d ––––, 2022 WL 17983088, at *2 (Pa. Super. Dec. 29,
2022); Commonwealth v. Thorne, 285 A.3d 908 (unpublished
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memorandum) (Pa. Super. filed September 7, 2022); Commonwealth v.
Snyder, No. 2060 EDA 2019, 2023 WL 315608 (Pa. Super. filed Jan. 19,
2023).2
Thus, in accordance with the Supreme Court’s jurisprudence in Thorne
and Torsilieri, we remand to the trial court for an evidentiary hearing and an
opportunity for Appellant to supplement his arguments with scientific
evidence.
Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/7/2023
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2 See Pa.R.A.P. 126(b) (unpublished non-precedential decisions of the
Superior Court filed after May 1, 2019, may be cited for their persuasive
value).
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