Com. v. Macedo, C., Appeal of: PA State Police

J-S03005-24


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

  COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
  CHRISTOPHER MICHAEL MACEDO                   :
                                               :
                                               :   No. 695 MDA 2023
  APPEAL OF: PENNSYLVANIA STATE                :
  POLICE                                       :

                Appeal from the Order Entered April 13, 2023
  In the Court of Common Pleas of Cumberland County Criminal Division at
                     No(s): CP-21-CR-0002432-2009


BEFORE: OLSON, J., NICHOLS, J., and BECK, J.

MEMORANDUM BY OLSON, J.:                       FILED: MARCH 20, 2024

       Appellant, the Pennsylvania State Police (“PSP”), appeals from the April

13, 2023 order granting Appellee Christopher Michael Macedo’s petition asking

the trial court to vacate his registration requirements under Subchapter I of

the Sexual Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S.A.

§ 9799.51-9799.75.1 After careful consideration, we transfer this appeal to

the Pennsylvania Supreme Court.

       A previous panel of this Court summarized the facts of this case as

follows:


____________________________________________


1 Among other things, SORNA’s Subchapter I provides that an offender who

committed an enumerated offense between April 22, 1996 and December 20,
2012 must comply with certain registration, notification, and counseling
(“RNC”) requirements. See 42 Pa.C.S.A. § 9799.52.
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      [Appellee] serially molested his younger siblings and
      step-siblings between February 2000 and February 2006. He
      was [11-years-old] when the first offense occurred. He was a
      few days shy of his 17[th] birthday when the last offense took
      place. The offenses occurred when [Appellee] was placed in the
      position of having to babysit the victims. The abuse stopped
      when he was no longer forced to care for the children.

                                     ***

      The instant offenses were not brought to light until July [] 2009,
      when [Appellee] was more than 20 years old. At that time[,] it
      was no longer feasible to treat him as a juvenile.

                                     ***

      On May 21, 2010, [Appellee] entered a plea of nolo contendere
      to [10] counts of rape, seven counts of involuntary deviate
      sexual intercourse [(“IDSI”] with a child, six counts of
      aggravated indecent assault, [10] counts of incest and [27]
      counts of indecent assault. The Commonwealth gave notice
      that it was seeking the mandatory minimum sentence on
      [Appellee’s] rape, [IDSI,] and aggravated indecent assault
      charges.

      [Appellee] was referred to the Sexual Offender Assessment
      Board for an evaluation. Thereafter[,] the Commonwealth filed
      a petition to have him declared to be a sexually violent predator
      [(“SVP”)]. [The trial court] held an evidentiary hearing on the
      petition on September 7, 2010. On October 5, 2010, [the trial
      court] entered an order designating [Appellee] as an [SVP]. On
      that same date[, the court] sentenced him to imprisonment for
      not less than five nor more than [10] years plus an additional
      [20] years[’] probation.     [This sentence included multiple
      five-year mandatory minimum sentences, all of which Appellee
      was to serve concurrently. Appellee was also subjected to
      lifetime sexual offender registration requirements.]

Commonwealth v. Macedo, 43 A.3d 528 (Pa. Super. 2012) (unpublished

memorandum) (Table at 1-2).




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       On July 20, 2022, Appellee filed a petition seeking to vacate his sexual

offender registration requirements.2           In his petition, Appellee argued that,

because he was a juvenile at the time he committed the offenses, his

continuing    registration     requirements      under   Subchapter    I   of   SORNA

constituted cruel and unusual punishment and violated his due process rights

under the Fifth and 14th Amendments of the United States’ Constitution, as

well as Article I, Section 9 of the Pennsylvania Constitution. In making this

assertion, Appellee relied upon our Supreme Court’s decision in In the

Interest of J.B., 107 A.3d 1 (Pa. 2014) (“J.B.”) and this Court’s decision in

Commonwealth v. Haines, 222 A.3d 756 (Pa. Super. 2019). J.B. held that

SORNA's lifetime registration provision violated a juvenile offender’s due

process rights by utilizing the irrebuttable presumption that was not

universally true.3     Haines extended J.B. to juvenile offenders who were

____________________________________________


2 Prior to filing the instant petition, Appellant challenged his judgment of
sentence in a direct appeal before this Court. We affirmed Appellant’s
judgment of sentence in 2012. Thereafter, our Supreme Court denied
allocatur on February 21, 2013. As such, Appellee’s judgment of sentence
became final on May 22, 2013, when the 90-day period to file a petition for
writ of certiorari in the United States Supreme Court expired. See 42
Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct. Rule 13, The trial court, however, was
permitted to exercise jurisdiction over Appellee’s July 20, 2022 petition
pursuant to our Supreme Court’s decision in Commonwealth v. Lacombe,
234 A.3d 602, 617-618 (Pa. 2020) which explicitly stated that a challenge to
the application of a sexual offender registration requirement need not be
raised under the Post-Conviction Relief Act (“PCRA”).

3 We note that, in J.B., the Supreme Court considered the original version of

SORNA (42 Pa.C.S.A. §§ 9799.10-9799.41), which became effective in
December 2012. SORNA was amended thereafter, but the amendments are
not germane to the issues discussed herein.

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convicted and sentenced after reaching majority. On August 2, 2022,

Appellant entered its appearance and filed an answer to Appellee’s petition.

      Thereafter, the trial court entered an order stating that, because the

offenses in this case occurred when Appellee was a juvenile, the “registration

requirements of SORNA imposed as a result of the underlying offenses . . .

must be vacated” pursuant to J.B. and Haines. Trial Court Order, 9/19/22,

at 1. The court, however, noted that Appellee was “still required to undergo

lifetime registration under SORNA because of the prior finding that he [met

the criteria for SVP designation].” Id. The court then stated that it had “some

concerns about the validity of [its] original finding that [Appellee was] a[n

SVP]” and requested further briefing to address “whether or not [Appellee’s]

status as a[n SVP] may be revisited.”        Id.   Appellee, therefore, filed a

subsequent brief in which he argued that, in light of his juvenile status at the

time of the offenses, the application of Subchapter I’s irrebuttable

presumption of future dangerousness within the context of his SVP

determination was unconstitutional. See Appellee’s Second Brief in Support

of Petition to Vacate, 10/13/22, at *3-*7 (unpaginated).

      Ultimately, on April 13, 2023, the trial court granted Appellee’s petition,

holding as follows:

       [This court] is satisfied that [Appellee] has demonstrated that
       1) SORNA encroaches upon his constitutionally protected and
       fundamental right to reputation with an irrebuttable
       presumption that all sexual offenders pose a high risk of
       committing additional sexual offenses; 2) SORNA’s presumption
       is not universally true as evidenced by the fact[] that [Appellee]
       himself stopped the problematic conduct while he was yet a

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J-S03005-24


        juvenile, has since maintained employment and started a
        family, has remained crime free, and has been found to be a
        low risk of recidivism of sexual offenses by an expert; and
        3) alternative    means,    including   periodic    individual
        reassessment, exist to determine (the presumed fact of)
        whether a sex offender who committed his offense as a juvenile
        against another juvenile poses a continued, high risk of
        recidivating. See [J.B., supra; Haines, supra]. [Appellee]
        has shown that he will forever be negatively affected by the
        presumption imposed by SORNA and his SVP designation.
        Accordingly, it is hereby ORDERED and DECREED that
        [Appellee] is relieved from his court-ordered registration
        requirements under SORNA. It is further ORDERED that the
        [PSP] is enjoined from requiring [Appellee] to register under
        SORNA or publishing him as a registered offender under
        SORNA.

Trial Court Order, 4/13/23, at 1-3 (footnotes omitted). This timely appeal

followed.4

____________________________________________


4  On June 14, 2023, the trial court ordered Appellant to file a concise
statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).
No such statement appears in the record or on the docket. In general, the
failure to file a Rule 1925(b) statement would result in the waiver of an
appellant’s issues on appeal. See Greater Erie Indus. Dev. Corp. v.
Presque Isle Downs, Inc., 88 A.3d 222, 224-225 (Pa. Super. 2014) (en
banc); see also Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005)
(explaining that an untimely concise statement waives all claims on appeal);
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“[F]rom this date
forward . . . [a]ppellants must comply whenever the trial court orders them
to file a [s]tatement of [errors] [c]omplained of on [a]ppeal pursuant to Rule
1925. Any issues not raised in a 1925(b) statement will be deemed waived.”).
The trial court’s docket does not reflect that the court’s order was served on
Appellant, as required by Pa.R.Crim.P. 114(C)(2)(c). It simply notes that the
order was served upon the Cumberland County District Attorney’s Office and
Appellee’s counsel. We are, therefore, unable to determine the date Appellant
was served with the trial court’s Rule 1925(b) order, as required by Rule 114,
and similarly cannot conclude that Appellant failed to comply with the trial
court’s 1925(b) order. See Commonwealth v. Chester, 163 A.3d 470, 472
(Pa. Super. 2017) (finding that because the docket did not reflect whether
(Footnote Continued Next Page)


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       Appellant raises the following issues on appeal:

        1. Does Appellant have standing?

        2. Did the trial court err as a matter of law or abuse its
           discretion in finding that Appellee’s designation as a[n SVP]
           was based on an irrebuttable presumption?

        3. Did the trial court err as a matter of law in extending [J.B.,
           supra; Haines, supra] to Appellee who, as an adult, was
           classified [as] a[n SVP]?

        4. Did the trial court err as a matter of law or abuse its
           discretion in determining that Appellee’s [SVP] designation
           violated his right to reputation under Article [I], Section 1 of
           the Pennsylvania Constitution?

        5. Did the trial court err as a matter of law or abuse its
           discretion in finding that Subchapter I as applied to Appellee
           is unconstitutional?

Appellant’s Brief at 5.

       Before we address the merits of Appellant’s claims, we must first

determine whether we have jurisdiction to do so. Importantly, our Supreme

Court has exclusive jurisdiction over the following types of cases:

        § 722. Direct appeals from courts of common pleas

        The Supreme Court shall have exclusive jurisdiction of appeals
        from final orders of the courts of common pleas in the following
        classes of cases:

                                          ***

              (7) Matters where the court of common pleas has held
              invalid as repugnant to the Constitution, treaties or laws of
____________________________________________


service of the court’s 1925(b) order was effectuated, it could not conclude that
the appellant failed to comply with the order). Accordingly, we decline to find
that Appellant waived its claim on this basis. Moreover, in the interest of
judicial economy, we decline to remand this matter to determine whether the
trial court’s 1925(b) order was properly served. See id. at 472, n.2.

                                           -6-
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            the United States, or to the Constitution of this
            Commonwealth, any treaty or law of the United States or
            any provision of the Constitution of, or of any statute of,
            this Commonwealth, or any provision of any home rule
            charter.

42 Pa.C.S.A. § 722(7).

      In addition, Rule 751 of the Pennsylvania Rules of Appellate Procedure

provides:

       Rule 751. Transfer of Erroneously Filed Cases

       (a) General rule. If an appeal or other matter is taken to or
       brought in a court or magisterial district which does not have
       jurisdiction of the appeal or other matter, the court or
       magisterial district judge shall not quash such appeal or dismiss
       the matter, but shall transfer the record thereof to the proper
       court of this Commonwealth, where the appeal or other matter
       shall be treated as if originally filed in transferee court on the
       date first filed in a court or magisterial district.

       (b) Transfers by prothonotaries. An appeal or other matter
       may be transferred from a court to another court under this rule
       by order of court or by order of the prothonotary of any
       appellate court affected.

Pa.R.A.P. 751; see also 42 Pa.C.S.A. § 5103(a) (“A matter which is within

the exclusive jurisdiction of a court or magisterial district judge of this

Commonwealth but which is commenced in any other tribunal of this

Commonwealth shall be transferred by the other tribunal to the proper court

or magisterial district of this Commonwealth where it shall be treated as if

originally filed in the transferee court or magisterial district of this

Commonwealth on the date when first filed in the other tribunal.”);

Commonwealth v. Herman, 143 A.3d 392, 394 (Pa. Super. 2016) (“Where

an appeal within the exclusive jurisdiction of a tribunal is mistakenly filed in

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the wrong court, the proper course is to transfer the appeal to the correct

judicial body.”).

       The trial court herein held that the lifetime registration requirements

which followed Appellee’s SVP determination rested upon an irrebuttable

presumption that “all sexual offenders pose a high risk of committing

additional sexual offenses.” Trial Court Order, 4/13/23, at 2. The trial court

then determined that the application of the irrebuttable presumption violated

Appellee’s protected reputational interest, especially considering his juvenile

status at the time of the offenses. Id. at 1-3. Our case law uniformly holds

that an appeal from an order invalidating SORNA’s registration requirements

based on an irrebuttable presumption lies within the exclusive jurisdiction of

the Pennsylvania Supreme Court pursuant to Section 722(7).5                See
____________________________________________


5 In a recent decision, a panel of this Court addressed an appellant’s challenge

to a trial court’s order directing her to register as a sexual offender under
Revised Subchapter H of SORNA, 42 Pa.C.S.A. §§ 9799.10-9799.42. See
Commonwealth v. Muhammad, 241 A.3d 1149 (Pa. Super. 2020). In so
doing, we held that “SORNA [was] unconstitutional as applied to [the
a]ppellant because it creat[ed] an irrebuttable presumption that her
convictions . . . ma[d]e her a risk to commit additional sexual offenses.” Id.
at 1151-1152. Upon review, we conclude that this matter is wholly distinct
from that of Muhammad and fully within the jurisdiction of our Supreme
Court. Indeed, unlike Appellee herein, the appellant in Muhammad was not
convicted for crimes that are sexual in nature or are typical of those charges
that give rise to SORNA’s registration requirements. Rather, her convictions,
which included interference with custody of children, false imprisonment,
unlawful restraint and conspiracy to commit the aforementioned offenses,
arose from a single episode involving a custody dispute.           Hence, the
appellant’s challenge in Muhammad was clearly an “as-applied challenge
limited to the particular circumstances of [her] case.” Id. at 1157. In this
instance, like that of Torsilieri, Arnett, and Gruver, the trial court
(Footnote Continued Next Page)


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Commonwealth v. Torsilieri, 232 A.3d 567, 572 (Pa. 2020) (appeal from

trial court order declaring that RNC provisions of SORNA’s Revised Subchapter

H utilized an irrebuttable presumption which violated the appellant’s right of

reputation fell within exclusive jurisdiction of the Supreme Court); see also

Commonwealth v. Arnett, 2023 WL 2232705 *1 (Pa. Super. Feb. 27, 2023)

(non-precedential decision) (challenge to order declaring that SORNA

Subchapter I utilized an irrebuttable presumption which violated the

appellant’s right of reputation fell within exclusive jurisdiction of the Supreme

Court); Commonwealth v. Gruver, 2021 WL 37475 *1 (Pa. Super. Jan. 5,

2021) (non-precedential decision) (appeal from order finding that SORNA

Subchapter H’s RNC requirements utilized an irrebuttable presumption which

violated the appellee’s constitutional right of reputation fell within exclusive

jurisdiction of Supreme Court).6         We therefore transfer this appeal to the

Supreme Court of Pennsylvania.7


____________________________________________


terminated Appellee’s registration obligations because it determined that
SORNA Subchapter I utilized an irrebuttable presumption which
unconstitutionally intruded upon Appellant’s fundamental right of reputation.
We further note that the trial court applied its determination to invalidate
Appellee’s registration requirements despite his status as an SVP, which is a
question that has not yet been addressed by a Pennsylvania appellate court.

6 The Pennsylvania Supreme Court accepted the Gruver appeal and affirmed

the trial court in a per curiam order on other grounds. See Commonwealth
v. Gruver, 252 A.3d 642 (Pa. 2022) (per curiam).

7 In transferring the instant appeal, we express no opinion on whether
Appellant has standing to contest the trial court’s April 13, 2023 order. See
Commonwealth v. Cheeseboro, 91 A.3d 714, 720-722 (Pa. Super. 2014).

                                           -9-
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     Appeal transferred. Jurisdiction relinquished.
Judgment Entered.




Benjamin D. Kohler, Esq.
Prothonotary



Date: 3/20/2024




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