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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALLEN LEE DAVEY :
:
Appellant : No. 1834 EDA 2022
Appeal from the Judgment of Sentence Entered June 17, 2022
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0001257-2019
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM BY McCAFFERY, J.: FILED MAY 31, 2023
Allen Lee Davey (Appellant) appeals from the judgment of sentence
entered in the Monroe County Court of Common Pleas, following his guilty plea
to involuntary deviate sexual intercourse with a child1 (IDSI). Appellant
challenges his designation as a sexually violent predator (SVP) under
Subchapter H of the Pennsylvania Sex Offender Registration and Notification
Act2 (SORNA II). He argues: (1) the evidence was insufficient to support an
SVP finding, because the Commonwealth’s expert relied on “junk science;”
and (2) pursuant to Commonwealth v. Torsilieri, 232 A.3d 567 (Pa. 2020),
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1 18 Pa.C.S. § 3123(b). The Commonwealth has not filed a brief.
2 42 Pa.C.S. §§ 9799.10 to 9799.42 (Subchapter H); 42 Pa.C.S. §§ 9799.10
to 9799.75 (SORNA II).
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lifetime registration under SORNA II is unconstitutional because “it
permanently brands a person an SVP for life, and thus[ ] denies [them]
‘inherent and indefeasible rights’ of acquiring and possession [sic] of property
and reputation.” See Appellant’s Brief at 4, 6. We affirm.
I. Facts & Procedural History
In March of 2019, R.C., then 15 years old, reported that her stepfather,
Appellant, had been sexually assaulting her since she was six years old.
Affidavit of Probable Cause, Police Criminal Complaint, 4/30/19, at 1.
Appellant was charged with numerous offenses.
On September 24, 2021, Appellant entered a guilty plea to one count of
IDSI. The written plea colloquy stated the factual basis for the offense as
follows:3
Between August 8, 2011 and August 8, 2016,[4] in the County of
Monroe, Stroud Township, [Appellant] engaged in deviate sexual
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3 The certified record does not include the transcript for the plea hearing.
Upon informal inquiry by this panel, the trial court explained there was no
request for a copy of this particular transcript — a fact corroborated by the
trial docket. We remind counsel that the appellant bears the burden “to
ensure that the record contains what is necessary to effectuate appellate
review[.]” See Commonwealth v. Spotti, 94 A.3d 367, 381 (Pa. Super.
2014) (en banc) (citation omitted).
4 We observe the dates of Appellant’s conduct fell both before and after
December 20, 2012, the effective date of SORNA I. This Court has held “that
when an appellant’s offenses straddle the effective dates of [SORNA I], he is
entitled to the lower reporting requirements of Subchapter I, absent a specific
finding of when the offenses related to the convictions actually occurred.”
Commonwealth v. Alston, 212 A.3d 526, 530 (Pa. Super. 2019). See also
Commonwealth v. Elliott, 249 A.3d 1190, 1193 (Pa. Super. 2021)
(Footnote Continued Next Page)
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intercourse with a complainant who was less than 13 years of age,
to wit: R.C.
Guilty Plea Colloquy & Plea, 9/24/21, at 1. The trial court directed that the
Sexual Offender Assessment Board (SOAB) conduct an evaluation as to
whether Appellant satisfied the criteria to be an SVP.
On June 17, 2022, the trial court conducted a combined SVP and
sentencing hearing. First, the Commonwealth presented the testimony of
SOAB member Mary Muscari, Ph.D. Relevant to Appellant’s arguments on
appeal, she stated she has a master’s degree in criminology and a doctoral
degree in psychiatric nursing, but not any degrees in psychiatry or psychology.
N.T. at 9, 12. Nevertheless, Appellant did not object to her qualification as an
expert. Id. at 15. Dr. Muscari reviewed in detail each of the 15 statutory
factors for an SVP determination, as well as the detailed facts of this case.
Id. at 22-31. See 42 Pa.C.S. § 9799.24(b)(1)-(4). She opined Appellant met
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(generally, Subchapter H applies to an offender who committed a sexually
violent offense after December 20, 2012, the date SORNA I became effective,
while Subchapter I applies to an individual who committed a sexually violent
offense between April 22, 1996, and December 20, 2012).
As we discuss infra, at the SVP hearing, the trial court found Appellant
was an SVP under Section 9799.23, which falls under Subchapter H, and the
written “Notification of Megan’s Law Sex Offender Registration Duties,”
provided to Appellant and signed by him, similarly stated he was to register
under Subchapter H. N.T. SVP Hearing/Sentencing, 6/17/22, at 95;
Notification of Megan’s Law Sex Offender Registration Duties, 6/20/22, at 1.
Nevertheless, Appellant has raised no challenge regarding which subchapter
properly applies to him.
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the criteria for having a pedophilia disorder, pursuant to the “DSM-5,” which
“is a diagnostic and statistical manual . . . developed by the American
Psychiatric Association . . . for making psychiatric diagnoses.” N.T. at 30, 32-
33. Dr. Muscari further described the DSM-5 as “a compilation of opinions
and research by . . . experts,” and it is “considered as an evidence-based
manual” and is “well accepted.” Id. at 33. Finally, Dr. Muscari opined
Appellant was likely to reoffend and met the criteria to be an SVP. Id. at 36,
38.
Next, Appellant presented an expert witness, Dean Dickson, a licensed
psychologist and former member of the SOAB. See N.T. at 54-55. He opined
the methodology of an SVP assessment, including the 15 statutory factors,
are not scientific and “really not psychologic[al, where, for] example, there is
no term in the DSM for sexual predators.” N.T. at 61, 62. See also id. at 62
(“[W]hat we have in these reports is a lack of science.”). Mr. Dickson further
opined Dr. Muscari should have considered “actuarial data, appropriate
research, and a description of [Appellant’s] behavior outside the affidavit of
probable cause.” Id. at 73.
Nevertheless, Mr. Dickson agreed that Appellant met “the diagnostic
criteria for pedophilia.” N.T. at 67. However, he pointed out that Dr. Muscari
did not “discuss what kind of pedophile he is,” nor how various classifications
of pedophiles “differ in re-offense potential.” Id. at 66-67. With respect to
sex offender recidivism generally, Mr. Dickson testified “the science [has]
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changed,” and now there is “a voluminous amount of research that
showed . . . sex offenders recidivate at a very low rate,” but the current
SORNA II statutes are based on the former “false data.” Id. at 69, 70. At
this juncture, the Commonwealth objected that Mr. Dickson was addressing
policy and other issues not relevant to the inquiry of whether Appellant met
the criteria for an SVP. Id. at 70. The trial court agreed, reasoning it must
consider Appellant’s individual assessment only, and “not whether the statute
is . . . good or . . . bad,” nor whether the legislature considered the right
factors. Id. at 71. Mr. Dickson then testified he utilized “the Static-99, which
is an instrument . . . universally used to assess sex offender risk and
recidivism,” and determined Appellant had “a score of minus one” and was
not likely to reoffend. Id. at 64, 66.
Finally, Mr. Dickson opined that under the methodology he applied,
Appellant did not meet the criteria of an SVP. N.T. at 74. On cross-
examination, however, he acknowledged that while he objected to “the format
[of the statute] and the lack of looking at the science that [the field has]
accumulated,” the SVP criteria was prescribed by statute. Id. at 75. Mr.
Dickson affirmed that he believed Appellant met the criteria for pedophilia,
and further agreed that based on the legal, statutory definition of an SVP,
Appellant met the criteria for having predatory behavior. Id. at 76-77.
The trial court found, based on the “uncontradicted” opinions of both
parties’ experts, that Appellant met the statutory criteria for an SVP. N.T. at
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78. The court thus declared Appellant was subject to lifetime registration as
“set forth in 42 Pa.C.S. [§] 9799.23,”5 and additionally was a “Tier 3
offender.”6 Id. at 95. The court proceeded immediately to sentencing and
imposed a term of 15 to 40 years’ imprisonment. Id. at 78, 94.
Appellant filed a timely post-sentence motion, which was denied. He
then took this timely appeal and complied with the trial court’s order to file a
Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
II. Questions Presented
Appellant presents the following issues for our review:
[1.] Whether there was sufficient evidence presented at the “SVP”
hearing to determine that [A]ppellant is a sexually violent
predator.
[2.] Whether the sentencing court abused its discretion by holding
that [A]ppellant is a sexually violent predator on a standard of
proof less than clear and convincing evidence. . . .
[3.] Whether lifetime registration under [SORNA II] violates Pa.
Const., Art. I, § 1 . . . in that it permanently brands a person an
SVP for life, and thus, denies a citizen of our Commonwealth
“inherent and indefeasible rights” of acquiring and possession of
property and reputation.
[4.] Whether the failure of the . . . SOAB to consider scientific
evidence relative to their findings that a person is a sexually
violent predator is a violation of U.S. Constitution’s due process
clause under the Fourteenth Amendment[.]
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5 As stated above, Section 9799.23 falls within Subchapter H.
6 See 42 Pa.C.S. §§ 9799.14(d)(4) (IDSI is a Tier III sexual offense),
9799.15(a)(3) (Tier III sexual offender shall register for life).
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Appellant’s Brief at 4.
III. Standard of Review & Relevant Principles
We first set forth the relevant principles governing our review.
In order to affirm an SVP designation, we, as a reviewing court,
must be able to conclude that the fact-finder found clear and
convincing evidence that the individual is a[n SVP]. As with any
sufficiency of the evidence claim, we view all evidence and
reasonable inferences therefrom in the light most favorable to the
Commonwealth. We will reverse a trial court’s determination of
SVP status only if the Commonwealth has not presented clear and
convincing evidence that each element of the statute has been
satisfied.
Commonwealth v. Hollingshead, 111 A.3d 186, 189 (Pa. Super. 2015)
(citation omitted).
This Court has stated:
It is well-settled that an SVP order is a non-punitive collateral
consequence of the criminal sentence. “[T]he imposition of SVP
status is a component of the judgment of sentence even though
the ultimate collateral consequences are non-punitive.”
Commonwealth v. Woeber, 174 A.3d 1096, 1105 (Pa. Super. 2017)
(citation & emphasis omitted).
Furthermore, we note:
[An SVP] is defined as a person who has been convicted of a
sexually violent offense . . . and who [has] a mental abnormality
or personality disorder that makes the person likely to engage in
predatory sexually violent offenses.
In order to show that the offender suffers from a mental
abnormality or personality disorder, the evidence must show that
the defendant suffers from a congenital or acquired condition that
affects the emotional or volitional capacity of the person in a
manner that predisposes that person to the commission of
criminal sexual acts to a degree that makes the person a menace
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to the health and safety of other persons. Moreover, there must
be a showing that the defendant’s conduct was predatory. . . .
Hollingshead, 111 A.3d at 189-90 (citation omitted & paragraph break
added).
When performing an SVP assessment, a mental health
professional must consider the following 15 factors: whether the
instant offense involved multiple victims; whether the defendant
exceeded the means necessary to achieve the offense; the nature
of the sexual contact with the victim(s); the defendant’s
relationship with the victim(s); the victim(s)’ age(s); whether the
instant offense included a display of unusual cruelty by the
defendant during the commission of the offense; the victim(s)’
mental capacity(ies); the defendant’s prior criminal record;
whether the defendant completed any prior sentence(s); whether
the defendant participated in available programs for sexual
offenders; the defendant’s age; the defendant’s use of illegal
drugs; whether the defendant suffers from a mental illness,
mental disability, or mental abnormality; behavioral
characteristics that contribute to the defendant’s conduct; and any
other factor reasonably related to the defendant’s risk of
reoffending.
Id. at 190, citing 42 Pa.C.S. § 9799.24(b)(1)-(4).7
IV. Sufficiency Challenge – Science Supporting SVP Assessment
In his first issue, Appellant asserts the evidence was insufficient to
support his SVP designation, because the SOAB member’s assessment “was
done in a non-scientific method comprising [of] ‘junk science.’” Appellant’s
Brief at 6. Appellant contends that because Dr. Muscari did not hold any
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7 Appellant cites Section 9799.58 for the statutory factors for an SVP
determination. Appellant’s Brief at 7-8. That statute, however, falls under
Subchapter I. The applicable statute is instead Section 9799.24(b).
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degrees in psychology or psychiatry, she was unqualified to offer an opinion
as to whether he manifested a disorder such as pedophilia, nor on what is
predatory behavior. Id. at 9. Appellant asserts, “The present statute[,]
enabling the SOAB to be comprised of psychologists [sic], criminologists, and
psychiatrists [sic] [,] does not afford . . . due process if . . . the court . . . does
not hear evidence from those absolutely qualified and licensed in such areas
to do so.” Id. at 15. Furthermore, Appellant asserts “Dr. Muscari admitted
that she does not utilize a scientific method” when conducting an SVP
assessment, and avers this practice “is alarming because one can be deemed
an SVP on non-scientific methodology.” Id. at 10-11.
Finally, Appellant argues for reversal of the decisions in
Commonwealth v. Conklin, 897 A.2d 1168 (Pa. 2006) (“[W]e hold that, in
order to carry its burden of proving that an offender is an SVP, the
Commonwealth is not obliged to provide a clinical diagnosis by a licensed
psychiatrist or psychologist; the opinion of a qualifying criminal justice expert
suffices.[ ]”), and Commonwealth v. Dengler, 890 A.2d 372 (Pa. 2005)
(“Because the legislature provided the framework for assessing whether an
offender is an SVP, expert testimony tracking that framework, by definition,
should be deemed generally accepted in the community of professionals who
conduct SVP assessments. The testimony of a credentialed psychologist or
psychiatrist conducting an SVP assessment which follows the statutory
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formula for an assessment cannot be deemed ‘novel science’ and therefore no
Frye[8] hearing is necessary.”). We conclude no relief is due.
First, we note “this Court is bound by existing precedent and continues
to follow controlling precedent unless it is overturned by our Supreme Court.”
Alston, 212 A.3d at 529 n.4, citing Commonwealth v. Martin, 205 A.3d
1247, 1252 (Pa. Super. 2019). Both Dengler and Conklin remain good law
in Pennsylvania; thus, we are without authority to reverse or disturb those
decisions. As noted above, Conklin held “there is nothing in the [then-in
effect Megan’s Law] to support [an] argument that only a licensed psychiatrist
or psychologist may testify to an expert opinion concerning those aspects of
SVP status involving the offender’s mental abnormality or personality
disorder.” Conklin, 897 A.2d at 1176. Dengler stated, “Because the
legislature provided the framework for assessing whether an offender is an
SVP, expert testimony tracking that framework, by definition, should be
deemed generally accepted in the community of professionals who conduct
SVP assessments.” Dengler, 890 A.2d at 383. Accordingly, Appellant’s
arguments — that Dr. Muscari lacked the proper credentials in psychology or
psychiatry and the current statutory framework for SVP assessment wrongly
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8 Frye v. United States, 293 F. 1013 (D.C.Cir. 1923). See Dengler, 890
A.2d at 381 (Pennsylvania Supreme Court has “described the Frye standard
as follows: ‘Admissibility of the [scientific] evidence depends upon the general
acceptance of its validity by those scientists active in the field to which the
evidence belongs.’”).
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allows “junk science” — are without merit. See Conklin, 897 A.2d at 1178;
Dengler, 890 A.2d at 383.
Additionally, Appellant’s premise, that Dr. Muscari “admitted that she
does not utilize a scientific method,” is not supported by the record. See
Appellant’s Brief at 10. At the hearing, she clearly stated “the DSM is a
diagnostic and statistical manual,” is “an evidence-based manual,” and “is well
accepted.” N.T. at 32-33. Indeed, Appellant’s own expert witness, Mr.
Dickson, acknowledged the DSM was science-based. Id. at 59 (testifying,
“[Dr. Muscari] referenced specifically the DSM. That’s the only science that is
in the SVP assessment.”).
In any event, while Appellant purports to challenge the sufficiency of the
evidence, his argument is that the trial court should not have credited the
Commonwealth’s witness, but instead the testimony of his own expert
witness. Such a claim goes to the weight of the evidence:
[An SOAB] report or opinion that the individual has an abnormality
indicating the likelihood of predatory sexually violent offenses is
itself evidence. Also, while a defendant is surely entitled to
challenge such evidence by contesting its credibility or reliability
before the SVP court, such efforts affect the weight, not the
sufficiency of the Commonwealth’s case. Accordingly, they do not
affect our sufficiency analysis.
See Commonwealth v. Feucht, 955 A.2d 377, 382 (Pa. Super. 2008)
(citations omitted).
Furthermore, Appellant wholly overlooks the trial court’s discussion that
while Mr. Dickson would urge for legislative changes to SORNA II, the issue of
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policy was not before the court. Instead, the narrow question was whether
Appellant met the criteria, as set forth in the current statutory framework, for
an SVP. N.T. at 71, 78. Finally, Appellant ignores that both parties’ experts
agreed he had a pedophilia disorder and met the criteria for an SVP under
SORNA II. See id. at 30, 38, 74; Trial Ct. Op., 9/7/22, at 3. We conclude no
relief is due on this challenge to the SVP designation.
V. Sufficiency Challenge – Torsilieri
In his next issue, Appellant relies on the Pennsylvania Supreme Court’s
opinion in Torsilieri, 232 A.3d 567, as well as the Chester County Court of
Common Pleas’ subsequent decision on remand (discussed infra). He avers
lifetime registration as an SVP and Tier III offender “[e]ssentially brand[s]”
an individual to be a leper, and thus violates Article I, Section 1 of the
Pennsylvania Constitution, as it permanently denies an individual the right to
their reputation.9 Appellant’s Brief at 22. Appellant states he “incorporates . .
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9See Pa. Const. Art. I, § 1 (“All men are born equally free and independent,
and have certain inherent and indefeasible rights, among which are those of
enjoying and defending life and liberty, of acquiring, possessing and protecting
property and reputation, and of pursuing their own happiness.”).
We note that while Appellant briefly referred to the Torsilieri decision
at the SVP and sentencing hearing, he did not raise any of the arguments now
presented on appeal. See N.T. at 79-80 (Appellant’s counsel stating, “I do
have some digression on the SVP ruling, I reserve that for post-sentence
motions. But many of the arguments that I will advance in regards to that,
just to preserve the record . . . it’s cited in [Torsilieri].”).
(Footnote Continued Next Page)
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. all of the arguments advanced by the” Chester County court, which held on
remand that “SORNA is punitive in nature, offends results in a criminal
sentence in excess of the statutory maximums[,] violates Federal and State
proscriptions against cruel and unusual punishment[, and therefore breaches
the separation of powers doctrine.” Id. at 25. We conclude no relief is due.
Preliminarily, we observe the greater part of Appellant’s argument goes
to his SVP registration requirements, while he merely makes passing
reference to his Tier III requirements. See Appellant’s Brief at 22-29. We
address his SVP finding first, and conclude no relief is due pursuant to
Commonwealth v. Manzano, 237 A.3d 1175 (Pa. Super. 2020).
In Manzano, the defendant, determined to be an SVP, argued
“Subchapter H is unconstitutional because it . . . creates an irrebuttable
presumption of dangerousness in violation of the right to reputation protected
by the Pennsylvania Constitution[ and] violates separation of powers
principles.” Manzano, 237 A.3d at 1179. This Court denied relief, noting the
Torsilieri, which was issued while the Manzano appeal was pending: (1)
“addressed the constitutionality of the provisions of Revised Subchapter H that
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Generally, “issues not properly raised and preserved before the trial
court ‘are waived and cannot be raised for the first time on appeal.’”
Commonwealth v. Thorne, 276 A.3d 1192, 1196 (Pa. 2022), citing, inter
alia, Pa. R.A.P. 302(a). However, our Supreme Court has held that a
challenge — to the constitutionality of lifetime registration requirements under
Subchapter H— implicates the legality of a sentence and thus cannot be
waived. Thorne, 276 A.3d at 1197.
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are not applicable to SVPs,” (2) while positively referring to the holding in
Commonwealth v. Butler, 226 A.3d 972 (Pa. 2020) (Butler II), that the
“registration, notification, and counseling requirements applicable to SVPs do
not constitute criminal punishment and therefore [the] SVP designation
procedure is constitutionally permissible.”10 Manzano, 237 A.3d at 1180.
The Manzano Court then reasoned the defendant “fail[ed] to articulate what
registration requirements, if any, he is subject to in . . . Subchapter H that fall
outside of those requirements specifically applicable to SVPs, which [Butler
II] has already declared are constitutional.” Id. at 1182. Pursuant to Butler
II and Manzano, Appellant’s present reliance on Torsilieri, concerning his
SVP designation and registration requirements, are meritless.
Next, with respect to Appellant’s registration requirements as a Tier III
offender, we conclude no relief is due. In Torsilieri, the defendant challenged
his Tier III reporting requirements
as violating his due process rights under the Pennsylvania
Constitution[ and] challenged the presumption in SORNA II that
all sex offenders are dangerous and pose a high risk of recidivism,
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10 In its opinion, the trial court reasoned Appellant was not entitled to relief
pursuant to Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020). Trial
Ct. Op. at 3.
However, as the trial court noted, Lacombe addressed Subchapter I.
See Trial Ct. Op. at 3; Lacombe, 234 A.3d at 626-67 (“We hold Subchapter
I does not constitute criminal punishment, and the ex post facto claims
forwarded by [the defendants] necessarily fail.”). That decision is thus not
applicable to this appeal, where Appellant was directed to comply with
Subchapter H.
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necessitating registration and notification procedures to protect
the public from recidivist sex offenders. . . .
Manzano, 237 A.3d at 1181. On appeal, our Supreme Court acknowledged
the defendant posed “colorable constitutional challenges” to Subchapter H,
but “decided it was unable to conclude[,] based upon the record before it[,]
whether the defendant had sufficiently undermined the validity of the
legislative findings supporting . . . Subchapter H’s registration and notification
provisions, especially in light of the Commonwealth’s contradictory scientific
evidence produced on appeal.” Id. The Torsilieri Court thus “remanded to
allow the parties to address whether a consensus has developed to call into
question the relevant legislative policy decisions impacting sex offenders’
constitutional rights.” Id. at 1181.
In the case sub judice, Appellant has not presented any meaningful
argument as to his tier-based registration. His three passing references to
Tier III are, in sum: (1) “Essentially branded a ‘[leper]’ [sic] the Tier III
registration requirements of SORNA deny permanently a citizen of our
Commonwealth ‘indefeasible rights’ of acquiring and possessing property and
reputation;” (2) in the Torsilieri post-remand opinion, the trial court
considered “the burdensome requirements of [T]ier III lifetime registration;”
(3) “[Appellant] avers that . . . SORNA as applied by the courts . . . denies . . .
procedural and substantive due process to litigants who have committed Tier
III SORNA offenses.” Appellant’s Brief at 22, 23, 26 (emphases added). The
sum of these statements, without more, are not persuasive. See Elliott, 249
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A.3d at 1195 (“[I]t is an appellant’s duty to present arguments that are
sufficiently developed for our review. The brief must support the claims with
pertinent discussion, with references to the record and with citations to legal
authorities.”). Finally, this Court has held “[w]e will not venture beyond our
Supreme Court's holding in Torsilieri,” which did not reach a conclusion on
the constitutionality of Subchapter H. Commonwealth v. Wolf, 276 A.3d
805, 814 (Pa. Super. 2022). In light of all the foregoing, we conclude no relief
is due.
VI. Conclusion
As we decline to grant relief on Appellant’s sufficiency and constitutional
challenges to his SVP and Tier III registration requirements under Subchapter
H, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judge Bowes Concurs in the Result.
Judge Sullivan Concurs in the Result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/31/2023
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