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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
BARRETT TUNSIL :
:
Appellant : No. 1990 EDA 2016
Appeal from the Judgment of Sentence April 25, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008448-2013
BEFORE: LAZARUS, J., OTT, J. and FITZGERALD, J.*
MEMORANDUM BY OTT, J.: FILED DECEMBER 08, 2017
Barrett Tunsil appeals from the judgment of sentence entered on April
25, 2016, in the Philadelphia County Court of Common Pleas, made final by
the denial of a post-sentence motion on June 6, 2016. On October 6, 2014,
a jury convicted Tunsil of unlawful contact with a minor, aggravated indecent
assault of a child, corrupting the morals of a minor, endangering the welfare
of a child (“EWOC”), and indecent assault.1 The court sentenced Tunsil to an
aggregate term of 25 to 54 years’ incarceration. On appeal, Tunsil raises a
myriad of claims, arguing the court erred with respect to various evidentiary
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. §§ 6318(a)(1), 3125(b), 6301(a)(1)(i), 4304(a)(1), and
3126(a)(7), respectively.
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rulings, in allowing a stipulation between the parties, in denying a continuance
so that he could present a witness at sentencing, in sentencing him to
consecutive sentences, and in finding him to be a sexually violent predator
(“SVP”).2 See Tunsil’s Brief at 7. After a thorough review of the submissions
by the parties, the certified record, and relevant law, we affirm in part and
reverse in part.
The trial court set forth the underlying facts follows:
The evidence at trial established that [the victim] was living
with her mother and [Tunsil] who she referred to as her stepdad.
[The victim], who was 8 at the time, was also residing with her
younger sister and [Tunsil]’s daughter at [his] residence. It was
during this time that [Tunsil] began to sexually abuse [the victim]
by pulling her clothes down and inserting his finger into her vagina
and sucking on her breast. This conduct occurred in the kitchen
of the house when no one else was home and in [Tunsil]’s
bedroom while the others were downstairs. [Tunsil] threatened
to sell [the victim] to drug dealers or feed her to the rats if she
told anyone. [The victim] estimated that she was sexually
assaulted more than five (5) times between the age of eight (8)
and nine (9) while residing in [Tunsil]’s home.
[Tunsil] would punish [the victim] by pulling down her pants
and spanking her with his bare hand. He would lock her in the
basement in the dark prompting her to scream and kick on the
door because she was so frightened. It wasn’t until [the victim]
was removed from the home and placed with a foster family that
she was comfortable enough to reveal the depravity she had
endured.
[Tunsil] testified and denied ever touching or abusing [the
victim].
____________________________________________
2 We have reorganized the last two issues based on the nature of our
disposition.
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Trial Court Opinion, 9/2/2016, at 2 (record citations omitted).
A jury trial was held from October 1, 2014, to October 6, 2014. On the
last day, the jury convicted Tunsil of the above-mentioned crimes.
Subsequently, Tunsil filed numerous pro se motions, including a request to
represent himself at his SVP hearing and sentencing. The trial court granted
this request on May 29, 2015, but provided that current counsel was to remain
as back-up counsel.
On April 25, 2016, following an SVP hearing, the court found Tunsil to
be an SVP. See N.T., 4/25/2016, at 65. On that same date, the court
sentenced Tunsil to the following: (1) consecutive terms of nine to 20 years’
incarceration for both the aggravated indecent assault and unlawful contact
with a minor offenses; (2) a consecutive term of three-and-one-half to seven
years’ imprisonment for the EWOC charge; (3) a consecutive term of two-and-
a-half to five years’ incarceration for the corruption of minors offense; and (4)
a consecutive term of one to two years’ imprisonment for the indecent assault
charge. Id. at 91-92.
Tunsil filed a counseled post-sentence motion on May 3, 2016. Several
days later, on May 19, 2016, Tunsil’s counsel filed a motion to withdraw. On
June 6, 2016, the trial court denied both motions. This appeal followed. 3
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3 On June 20, 2016, the trial court ordered Tunsil to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Tunsil filed
a concise statement on July 10, 2016. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on September 2, 2016.
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With regard to Tunsil’s first issue, he maintains the cumulative effect of
the trial court’s erroneous rulings was harmful and deprived him of a fair trial.
See Tunsil’s Brief at 23. Tunsil states the court abused its discretion: (1) by
sustaining objections to certain questions the defense raised on cross-
examination; and (2) by allowing the Commonwealth to violate the best
evidence rule insofar as permitting a witness to summarize a video. See id.
at 23-34.
Our standard of review concerning challenges to the admissibility of
evidence is as follows:
The admissibility of evidence is a matter for the discretion of the
trial court and a ruling thereon will be reversed on appeal only
upon a showing that the trial court committed an abuse of
discretion. An abuse of discretion may not be found merely
because an appellate court might have reached a different
conclusion, but requires a result of manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support so as
to be clearly erroneous.
Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012) (citations and
quotation marks omitted).
With respect to Tunsil’s contentions regarding the limitation on his
cross-examination, we are guided by the following. “The scope of cross-
examination is a matter left to the sound discretion of the trial court, and the
trial court’s rulings will not be disturbed absent an abuse of discretion.”
Commonwealth v. Boczkowski, 846 A.2d 75, 96 (Pa. 2004). Moreover,
“[i]n this Commonwealth, cross-examination is ordinarily limited to matters
brought out on direct examination, except where the examiner is seeking to
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show bias.” Commonwealth v. Lobel, 440 A.2d 602, 605 (Pa. Super. 2009).
“A defendant has a fundamental right to present evidence provided that the
evidence is relevant and not subject to exclusion under one of our established
evidentiary rules.” Commonwealth v. McGowan, 535 Pa. 292, 635 A.2d
113, 115 (Pa. 1993) (citation omitted). Relevant evidence “tends to prove or
disprove some material fact, or tends to make a fact at issue more or less
probable.” Commonwealth v. Patterson, 91 A.3d 55, 71 (Pa. 2014), citing
McGowan, 635 A.2d at 115. Nevertheless, “[t]he right of confrontation does
not permit ‘fishing expeditions.’” Commonwealth v. Rosser, 135 A.3d 1077,
1088 (Pa. Super. 2016).
The trial court may place reasonable limits on defense
counsel’s cross-examination of a prosecution witness “based on
concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness’ safety, or interrogation that
is repetitive or only marginally relevant.” [Delaware v.] Van
Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed. 2d 674
(1986). “Generally speaking, the Confrontation Clause
guarantees an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.” Delaware v.
Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 88 L. Ed. 2d 15
(1985).
Van Arsdall articulates two inquiries for determining
whether a limitation on cross-examination violates the
confrontation clause. First, we inquire whether the limitation
prejudiced the examination of that particular witness. In other
words, absent the limitation, would the jury have received a
“significantly different impression” of the witness’s credibility?
[Van Arsdall, 475 U.S.] at 679-80. Second, if there was error,
we must determine whether it was harmless beyond a reasonable
doubt; if so, reversal is not warranted. Id. at 681.
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Rosser, 135 A.3d at 1088. “Without such limits, unchecked cross-
examination on a theory of bias may unfairly prejudice the opposing party’s
case and only bring forth ‘marginally relevant’ evidence.” Id. at 1088-1089
(citation and quotation omitted).
Turning to the present matter, Tunsil first argues the court erroneously
sustained a Commonwealth objection to the following question asked of
Denise Wilson, a forensic services manager and forensic interviewer for the
Philadelphia Children’s Alliance (“PCA”), who interviewed the victim on June
12, 2012: “Q. But you have really no way of knowing that [the victim] told
you the truth? A. I don’t.” N.T., 10/3/2014, at 36. Tunsil insists his question
was not a “fishing expedition” and
[t]here would also have been no prejudice to the Commonwealth
if Ms. Wilson had simply been allowed to answer the question. An
answer of “no” would have underscored the lack of an independent
investigation into the veracity of [the victim]’s claims, and that
the jury was being asked to convict Tunsil based on the
uncorroborated testimony of one alleged victim. An answer of
“yes,” followed by an explanation on redirect, would have
benefitted the Commonwealth.
Tunsil’s Brief at 26.
We note the “objected-to” statement was not stricken from the record.
As such, Tunsil suffered no prejudice because the jury heard Wilson’s answer.
Accordingly, his first evidentiary issue fails.
Next, Tunsil challenges the Commonwealth’s objection to the following
exchange between defense counsel and Wilson regarding the victim’s
concentration during the interview process:
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Q. Now, I noticed that when you are speaking with [the victim],
[she] is multi-tasking? She’s drawing at the same time?
A. Yes.
Q. Is that by design?
A. We provide like blank paper or either crayons or markers for
the kid just so they can have something to do in the room if they
wish to.
Q. Well, I understand doing that to make [the victim] feel
comfortable but when you get to the portion of the interview
where you’re really getting the substantive allegation, why did you
permit [the victim] to continue multi-tasking?
[The Commonwealth]: Objection.
THE COURT: Sustained.
[Defense Counsel]: Well, aren’t you afraid that [the victim] is not
really concentrating on your questions?
[The Commonwealth]: Objection.
THE COURT: Sustained.
[Defense Counsel]: [The victim] very rarely looked you in the eye
when she recited her allegations?
[The Commonwealth]: Objection.
THE COURT: Sustained.
N.T., 10/3/2014, at 38-39. Tunsil contends, “These questions properly sought
to remind the jury that [the victim] provided an allegation with devastating
consequences to Tunsil while playing with crayons and markers. The fair
inferences, that [the victim] made her allegations without focusing on details
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and as a virtual afterthought, were relevant to [the victim]’s credibility.”
Tunsil’s Brief at 27.
The court opined this testimony was either repetitive, not relevant,
argumentative, or a statement by counsel and not an actual question. Trial
Court Opinion, 9/2/2016, at 3. We agree with the trial court’s findings and
are not persuaded by Tunsil’s argument that the court was prohibiting him
from demonstrating the victim could have been distracted during the
interview. Furthermore, as will be discussed supra, the jury was able to
observe the victim’s ability to concentrate and answer questions because the
interview with Wilson was recorded and shown to the jury in toto. See N.T.,
10/3/2014, at 29. As such, Tunsil’s second evidentiary claim fails.
Third, Tunsil contends the court erred in sustaining an objection
regarding Detective Emmanuel Gonzalez’s testimony.4 On cross-examination,
Detective Gonzalez told defense counsel that he did not interview the victim
because possible victims are to be interviewed by the Philadelphia Children’s
Alliance. See N.T., 10/3/2014, at 78. Subsequently, defense counsel asked
him two questions, which are at issue: (1) “Well, aren’t you at all concerned
as a detective that perhaps children are being coached?”; and (2) “Well, didn’t
that occur to you, that [the victim] could have been coached?” Id. at 79.
Both questions were objected to by the Commonwealth, and sustained by the
____________________________________________
4 Detective Gonzalez was assigned to Child Abuse Unit of the Special Victims
Unit. See N.T., 10/3/2014, at 71.
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trial court. Id. Tunsil maintains “[t]hese questions, going to whether
customary procedures require police to interview a complaining witness in a
felony case, and whether Detective Gonzalez had any concerns about the
nature of [the victim]’s statement (whether it sounded like a child’s account
or instead bore the marks of adult suggestions) were relevant points of inquiry
for the defense.” Tunsil’s Brief at 28. The trial court disagreed and reflected:
The detective had already testified that the protocol was to have
Philadelphia Children’s Alliance interview the victim.
Consequently what he may or may not have wanted was
irrelevant…. The detective had testified he didn’t interview the
witness and that he was responsible for processing the arrest
paperwork and making the arrest. The question [regarding
whether the victim was coached] was beyond the scope of the
direct examination.
Trial Court Opinion, 9/2/2016, at 3. Viewing the evidence as a whole, we
concur with the trial court that these questions were either irrelevant or
outside the scope of direct examination. Accordingly, the trial court did not
abuse its discretion by sustaining these inquiries during Detective Gonzalez’s
testimony.
Fourth, Tunsil claims the court abused its discretion in limiting his cross-
examination of Andrew Jarzyniecki, an employee of Philadelphia Department
of Human Services (“DHS”).5 See Tunsil’s Brief at 28. Jarzyniecki testified
the victim had told him that Tunsil was physically abusing her, including the
____________________________________________
5 Jarzyniecki was assigned to investigate a report of suspected abuse or
neglect with respect to the victim. N.T., 10/3/2014, at 45.
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spankings, an incident where Tunsil held her over a banister, and about him
locking her in the basement. See N.T. 10/3/2014, at 52-53. On cross-
examination, defense counsel asked Jarzyniecki the following questions: “(1)
Does DHS have a policy regarding corporal punishment?”; and (2) “Well, are
you instructed to formulate opinions or reports relative to people
administering corporal punishment?” Id. at 68-69. Like above, the
Commonwealth objected to both questions and the trial court sustained those
objections. See id. The trial court explained its rationale as follows: “Mr.
Jarzyniecki was called by the Commonwealth to testify to his investigation of
the suspected abuse and neglect of complainant, [the victim]. As such the
questions concerning policies for corporal punishment were irrelevant to the
witness’[s] testimony.” Trial Court Opinion, 9/2/2016, at 4. Again, we agree
with the trial court’s reasoning. This line of questioning was not relevant to
the scope of Jarzyniecki’s direct examination. Accordingly, this evidentiary
claim is meritless.
Tunsil next argues the trial court allowed the Commonwealth to violate
the best evidence rule insofar as it permitted a witness to summarize a video.
By way of background, a video of the victim’s PCA interview with Wilson was
played during Wilson’s direct examination. See N.T., 10/3/2014, at 29.
Subsequently, during Jarzyniecki’s direct examination, he testified that he
observed the victim’s interactions during the PCA recorded interview. See id.
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at 53-54. Over objection, Jarzyniecki detailed what the victim said during the
interview regarding the sexual assault. See id. at 54. Tunsil asserts:
It is no secret that repetition wins cases. In the above manner,
the Commonwealth was erroneously allowed, through Mr.
Jarzyniecki, to provide a summary of the video that was more
concise and compelling than the statements of [the victim] that
were actually played on the video for the jury. In effect, Mr.
Jarzyniecki provided a “replay” that had more prejudicial impact
than the original.
Tunsil’s Brief at 30.
Tunsil’s argument is not actually an attack on the best evidence rule6 as
it is more concerned with the repeated admission of evidence concerning the
victim’s interview. In any event, the best evidence rule was not violated
because the videotape was admitted prior to Jarzyniecki’s testimony and the
jury was given the opportunity to view the entire interview. Furthermore, as
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6 The “best evidence rule”
is codified in Pennsylvania Rule of Evidence 1002, which provides:
“An original writing, recording, or photograph is required in order
to prove its content unless these rules, other rules prescribed by
the Supreme Court, or a statute provides otherwise.” Pa.R.E.
1002. Courts apply the best-evidence rule when the contents of
documentary evidence are at issue — that is, if the terms of a
writing must be proven to make a case or provide a defense.
Commonwealth v. Townsend, 2000 PA Super 32, 747 A.2d
376, 380 (Pa. Super. 2000). Thus, Rule 1002 requires that an
original writing, recording, or photograph be introduced at trial
only if the proponent must prove the contents of the writing,
recording, or photograph to prove the elements of its case. Id.
Commonwealth v. Ribot, 169 A.3d 64, 67 (Pa. Super. 2017).
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the Commonwealth mentions, “[t]here is nothing in the best evidence rule
that bars the Commonwealth from referencing a recording once its content
has been proven.” Commonwealth’s Brief at 18. Additionally, as the trial
court points out, “Jarzyniecki was describing his investigation and how he
conducted his investigation as well as what he learned through that
investigation. The testimony was clearly relevant and simply because it
repeated testimony previously received doesn’t make it error.” Trial Court
Opinion, 9/2/2016, at 4.7
Furthermore, if there was such an error in admitting this testimony, it
was harmless.
Harmless error exists if the state proves either: (1) the error did
not prejudice the defendant or the prejudice was de minimis; or
(2) the erroneously admitted evidence was merely cumulative of
other untainted evidence which was substantially similar to the
erroneously admitted evidence; or (3) the properly admitted and
uncontradicted evidence of guilt was so overwhelming and the
prejudicial effect of the error was so insignificant by comparison
that the error could not have contributed to the verdict.
Commonwealth v. Burno, 154 A.3d 764, 787 (Pa. 2017), quoting
Commonwealth v. Simmons, 662 A.2d 621, 633 (Pa. 1995). The second
prong of the harmless error test would apply here – that the evidence of
____________________________________________
7 Jarzyniecki’s testimony regarding what he witnessed during his observation
of the interview does not impact the best evidence rule. See Commonwealth
v. Bennett, 124 A.3d 327, 332 (Pa. Super. 2015) (“The best evidence rule
does not address the Commonwealth's presentation of video versus
eyewitness testimony.”).
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Jarzyniecki’s testimony was merely cumulative of the other untainted
evidence, namely the videotape. Accordingly, this evidentiary issue fails.
Lastly, we find that because all of Tunsil’s evidentiary claims were
without merit, his argument that the cumulative effect of the trial court’s
erroneous rulings was harmful and deprived him of a fair trial, also fails. See
Commonwealth v. Freeman, 827 A.2d 385, 416 (Pa. 2003) (“[i]t is settled
... that no number of failed claims may collectively attain merit if they could
not do so individually.”) (internal quotations omitted).
In Tunsil’s second argument, he contends the trial court erred in
granting a stipulation because it violated his constitutional rights to confront
and cross-examine a key Commonwealth witness, Diane Dawkins. See
Tunsil’s Brief at 31. Tunsil states the court “should have engaged in a colloquy
with Tunsil to determine if he agreed with the following stipulation[:]”8
There’s been a stipulation by and between counsel that if
called to testify, Diane Dawkins will testify that she is the previous
foster mother to [the victim] and [her sister]. She would testify
that in late May of 2012, while DHS worker Charles Williams was
at her home, [the victim’s] stepfather, Mr. Tunsil, would call [the
victim] his favorite and would sexually abuse her. Ms. Dawkins
asked [the victim] why she would not say anything before and
[the victim] said because no one had ever asked her about good
touch or bad touch before.
…
Ms. Dawkins was unable to testify at trial because she had an out
of state family emergency she had to attend to.
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8 Tunsil’s Brief at 32.
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N.T., 10/3/2014, at 82.
Tunsil argues:
[T]he stipulation was harmful to the defense case on
multiple levels. First, it allowed the jury to hear the testimony of
Ms. Dawkins, without any cross-examination as to the
circumstances of what [the victim] supposedly told her, and
without the opportunity for the jury to do an independent
assessment of Ms. Dawkin[s’] credibility. Second, the stipulation
also allowed the jury to hear additional testimony from [the
victim], long after she left the witness stand and was no longer
subject to cross-examination, that confirmed her previous
allegations of sexual abuse at the hands of Mr. Tunsil. The record
shows no advantage to the defense from agreeing to the
stipulation, but multiple bases for unfair prejudice. If Tunsil had
rejected the proposed stipulation, the most likely outcome was
that the jury would not have heard from Ms. Dawkins. Even if the
Court had granted a continuance allowing the Commonwealth to
bring Ms. Dawkins into court for live testimony, a continuance
would not have prejudiced Tunsil, because he had already been in
custody for more than two years at the time of trial.
Under these circumstances, the Court should have rejected
the stipulation unless it determined, either sua sponte or through
defense counsel, that Mr. Tunsil agreed with it. This safeguard of
Tunsil’s confrontation and cross-examination rights would have
required at most a few minutes of the Court’s time during a recess.
The Court followed this procedure when determining if Tunsil
agreed with defense counsel’s recommendation to not call Corinne
Pettis as a defense witness. Tunsil’s rights of confrontation were
as deserving of protection as his constitutional right to call defense
witnesses of his choice. The [t]rial [c]ourt’s approval of a
stipulation that was prejudicial to Tunsil on multiple levels without
any corresponding benefit violated Tunsil’s rights to confrontation
and cross-examination under the Sixth Amendment and Article I,
[S]ection 9 of the Pennsylvania Constitution.
Tunsil’s Brief at 32-33 (reproduced record citations omitted).
Before we may address the substance of this claim, we note Tunsil raises
this issue for the first time in his concise statement. See Tunsil’s Concise
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Statement of Matters Complained of on Appeal Pursuant to Pa.R.A.P.
1925(b)(4), 7/10/2016, at 4-6. A review of the records reveals he did not
raise the issue at trial or in his post-sentence motions.
It is well-settled that “[i]ssues not raised in the [trial] court are waived
and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a).
Moreover, “it is axiomatic that issues are preserved when objections are made
timely to the error or offense.” Commonwealth v. Baumhammers, 960
A.2d 59, 73 (Pa. 2008). “The purpose of contemporaneous objection
requirements respecting trial-related issues is to allow the court to take
corrective measures and, thereby, to conserve limited judicial resources.”
Commonwealth v. Sanchez, 36 A.3d 24, 42 (Pa. 2011). “[A] party may not
remain silent and afterwards complain of matters which, if erroneous, the
court would have corrected.” Commonwealth v. Strunk, 953 A.2d 577, 579
(Pa. Super. 2008). Turning to the present matter, because Tunsil failed to
raise a timely and specific objection with respect to the stipulation, he has
waived this issue.9
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9 Assuming, arguendo, that Tunsil did properly preserve the claim, we would
rely on the trial court’s findings:
At trial, [Tunsil] entered into a stipulation to the testimony
of Diane Dawkins. Now, [Tunsil], through new counsel, argues
that it was error to stipulate to the testimony because it deprived
him of the right to cross examine and confront the witness.
[Tunsil] contends that the Court had a duty to make sure the
decision to enter into the stipulation was with [Tunsil]’s
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In his third argument, Tunsil complains the trial court erred in failing to
grant his continuance request that was necessary for him to enforce a
subpoena that had been properly served on a defense witness, his daughter,
for the sentencing hearing. See Tunsil’s Brief at 34. By way of a background,
Tunsil states that while he was awaiting sentencing, the trial court entered an
order, permitting his daughter, Corrine N. Pettis, to be subpoenaed. See
Order, 9/4/2015.10 Despite proper service, Pettis did not appear at Tunsil’s
sentencing and consequently, defense counsel requested a continuance to
allow Pettis to be brought into court. See N.T., 4/25/2016, at 3-9. When
asked about Pettis, counsel stated, “This is a biological daughter living in the
household who, with my understanding, from Mr. Tunsil, would confirm that
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agreement. No such duty exists. First and foremost, [Tunsil] was
present and took the stand in his own defense. At no time has he
complained about the stipulation that was entered into with the
Commonwealth. More importantly, [Tunsil]’s counsel insisted on
the stipulation so he could argue the inconsistencies in [the
victim]’s accounts in closing argument. This Court had no duty to
ensure [Tunsil] was comfortable with the stipulation and counsel
cannot be faulted simply because his strategy failed. See
Commonwealth v. Speight, 677 A.2d 317, 322 (Pa. 1996) (did
decision by trial counsel have “some reasonable basis designed to
effectuate … client’s interests, and if so … inquiry ends”).
Trial Court Opinion, 9/2/2016, at 4 (record citation omitted). Additionally, we
note Tunsil provides no support for his assertion that the trial court should
have colloquied him regarding his understanding and acceptance of the
stipulation. Tunsil’s allegation would be better suited for an ineffective
assistance of counsel claim in a post-conviction collateral petition.
10 Pettis did not testify at Tunsil’s trial.
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he did what he was supposed to as a dad. He put food on the table and he
never abused [Pettis]. She is expected to confirm that.” Id. at 4-5. The
court stated it would not relitigate the issue of whether Tunsil sexually
assaulted the victim. See id. at 5. Counsel then responded that Pettis’s
testimony would be relevant to one of the SVP factors, that his conduct did
not involve multiple victims. See id. After some discussion, the parties
stipulated there was only one victim in this specific case. See id. at 7.
Defense counsel stated he still wanted Pettis’s testimony to show that Tunsil
“was a good dad[.]” Id. at 8. The court then denied the continuance request,
stating its rationale:
This case is almost a year and a half old from the time when
the jury rendered their verdict. It has been continued a number
of times, and I’m not going to continue it anymore. I believe the
Commonwealth has said they would stipulate to certain things that
you’re requesting; and, quite frankly, the issue isn’t whether or
not [Tunsil] put food on the table and a roof over their heads.
That’s not the issue, but your objection is noted.
Id. at 9.
Tunsil argues his “rights to compulsory process under the Sixth
Amendment and as further guaranteed by Article 1, [S]ection 9 of the
Pennsylvania Constitution extended through sentencing.” Tunsil’s Brief at 36.
Relying on the continuance test in Commonwealth v. Maute, 485 A.2d 1138,
1144 (Pa. Super. 1984), Tunsil complains he should have been granted a
continuance because: (1) Pettis “was ‘necessary to strengthen the defense,’
as she would have provided a description of the Tunsil household that was
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radically different from (to quote the [t]rial [c]ourt) the ‘atmosphere of cruelty
and manipulation’ invoked by [the victim]”;11 (2) Tunsil exercised all possible
diligence to secure Pettis’s attendance at trial (by hiring a private investigator,
issuing a subpoena, serving said subpoena);12 and (3) “with a valid address
and phone number for [Pettis’ legal guardian], there was every likelihood that
the Court could have compelled compliance with the [s]ubpoena, by sending
a [d]eputy [s]heriff to the residence.”13
Our standard of review regarding continuances is well-settled:
The grant or denial of a motion for a continuance is within the
sound discretion of the trial court and will be reversed only upon
a showing of an abuse of that discretion. [A]n abuse of discretion
is not merely an error of judgment. Rather, discretion is abused
when the law is over-ridden or misapplied, or the result of
partiality, prejudice, bias, or ill-will as shown by the evidence or
the record. The grant of a continuance is discretionary and a
refusal to grant is reversible error only if prejudice or a palpable
and manifest abuse of discretion is demonstrated.
Commonwealth v. Hansley, 24 A.3d 410, 418 (Pa. Super. 2011), appeal
denied, 32 A.3d 1275 (Pa. 2011) (citation omitted). Further, “[i]n reviewing
a denial of a continuance, the appellate court must have regard for the orderly
administration of justice[.]” Id. (citation omitted).
____________________________________________
11 Tunsil’s Brief at 36 (reproduced record citations omitted).
12 Id. at 37.
13 Id.
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In Maute, which Tunsil relies on, a panel of this Court addressed the
decision to grant or refuse a continuance based on a material witness:
The considerations which underlie the exercise of a trial judge's
discretion to grant or refuse a continuance based on the absence
of a material witness include whether the witness is essential to
the defense or necessary to strengthen the defense, the diligence
exercised to procure the witness’ presence at trial, the facts to
which the witness could testify, and the likelihood that the witness
could be procured at the next term of court.
Commonwealth v. Maute, 485 A.2d 1138, 1144 (Pa. Super. 1984), citing
Commonwealth v. Howard, 353 A.2d 438, 439 (Pa. 1976). The Howard
Court also opined: “If testimony which an absent witness would give is merely
cumulative or available from another source, then a continuance may be
properly denied.” Id.
Here, the court explained its reasoning as follows:
This witness, Corrine Pettis, was present at trial and [Tunsil]
decided not to call her as a witness. [Tunsil] was convicted of
these crimes by a jury on October 6, 2014. A Megan’s Law
assessment was ordered and the matter was continued for
sentencing. Thereafter, the sentencing hearing was continued on
January 14, 2015; February 27, 2015; May 29, 2015; August 10,
2015; September 4, 2015; September 21, 2015; October 23,
2015; and December 21, 2015. [Tunsil]’s sentencing hearing
occurred 567 days after the verdict in his case. This Court was
not receptive to prolonging the matter any longer. This was
because all of the continuances were at the behest of [Tunsil].
The first two continuances were joint requests. However, the
remaining six continuances were defense requests. Moreover, the
Commonwealth agreed to stipulate to the proposed testimony.
[Tunsil] was not prejudiced by the denial of his request for a
continuance.
Trial Court Opinion, 9/2/2016, at 5 (citations omitted). Based on the specific
circumstances of this case (including the fact that the continuance request
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was made after eight continuances were already granted in the matter, the
request was made at sentencing as opposed to trial, and the Commonwealth
stipulated to certain testimony regarding the witness), we do not find that the
trial court demonstrated “prejudice or a palpable and manifest abuse.”
Hansley, 24 A.3d at 418. Accordingly, Tunsil’s third argument fails.
Next, Tunsil claims his aggregate sentence was manifestly excessive and
amounted to cruel and unusual punishment. See Tunsil’s Brief at 41. Tunsil
states the imposition of consecutive sentences is not proportional to the
crimes where it was a case “that involved no indecent exposure, intercourse,
or ejaculation[.]” Id. With respect to his sentence being manifestly
excessive, Tunsil points to the following: (1) the victim did not sustain serious
physical injuries as a result of his fondling; (2) it appears the victim has been
able to move on from “whatever”14 happened at his home; and (3) there was
a 34-year lapse between his prior conviction and the present assault. See id.
at 43. He states, “The Court did not explain the basis for consecutive
sentences on April 25, 2016, for charges that evidently arose from the same
factual circumstances.” Id. at 44. With regard to his excessive sentence
amounting to cruel and unusual punishment, Tunsil relies on Commonwealth
v. Barnett, 50 A.3d 176 (Pa. 2012). See Tunsil’s Brief at 46. He contends
____________________________________________
14 Tunsil’s Brief at 43.
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the facts in his case were not so lurid as those in Barnett, and therefore, the
aggregate sentence imposed was grossly disproportionate. Id. at 47-48.
As presented, Tunsil’s issues challenge the discretionary aspects of his
sentence. See Commonwealth v. Lutes, 793 A.2d 949 (Pa. Super. 2002)
(explaining argument that sentence is manifestly excessive challenges
discretionary aspects of sentencing). “A challenge to the discretionary aspects
of a sentence must be considered a petition for permission to appeal, as the
right to pursue such a claim is not absolute.” Commonwealth v. Hoch, 936
A.2d 515, 518 (Pa. Super. 2007) (citations and quotation marks omitted). To
reach the merits of a discretionary issue, this Court must determine:
(1) whether appellant has filed a timely notice of appeal; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence; (3) whether
appellant’s brief has a fatal defect; and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011)
(footnotes omitted).
Here, Tunsil filed a timely notice of appeal and included the requisite
statement pursuant to Pa.R.A.P. 2119(f) in his appellate brief. See Tunsil’s
Brief at 22-23. Moreover, counsel for Tunsil preserved the claims by raising
them in the May 3, 2016, post-sentence motion. Therefore, we may proceed
to determine whether Tunsil has presented a substantial question that the
sentence appealed from is not appropriate under the Sentencing Code.
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Commonwealth v. Edwards, 71 A.3d 323, 330 (Pa. Super. 2013), appeal
denied, 81 A.3d 75 (Pa. 2013).
With respect to whether an issue presents a substantial question, we
are guided by the following:
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. See Commonwealth v.
Paul, 2007 PA Super 134, 925 A.2d 825 (Pa. Super. 2007). “A
substantial question exits only when the appellant advances a
colorable argument that the sentencing judge’s actions were
either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie
the sentencing process.” Commonwealth v. Griffin, 2013 PA
Super 70, 65 A.3d 932, 2013 WL 1313089, *2 (Pa. Super. filed
4/2/13) (quotation and quotation marks omitted).
Edwards, 71 A.3d at 330 (citation omitted). Moreover,
[w]e have stated that the imposition of consecutive rather
than concurrent sentences lies within the sound discretion
of the sentencing court. Long standing precedent of this
Court recognizes that 42 Pa.C.S.[] § 9721 affords the
sentencing court discretion to impose its sentence
concurrently or consecutively to other sentences being
imposed at the same time or to sentences already imposed.
A challenge to the imposition of consecutive rather than
concurrent sentences does not present a substantial
question regarding the discretionary aspects of sentence. ...
However, we have recognized that a sentence can be so
manifestly excessive in extreme circumstances that it may create
a substantial question. When determining whether a substantial
question has been raised, we have focused upon whether the
decision to sentence consecutively raises the aggregate sentence
to, what appears upon its face to be, an excessive level in light of
the criminal conduct in this case.
Commonwealth v. Zirkle, 107 A.3d 127, 133-134 (Pa. Super. 2014)
(citations and internal quotation marks omitted).
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Here, the criminal conduct included evidence that Tunsil, who was in a
caretaker role, sexually abused the victim for over a year and on multiple
occasions. He threatened her with certain consequences so she would not tell
anyone about the abuse, physically punished her, and locked her in the
basement for long time periods.15 Tunsil also had a prior criminal history of
sexually abusing a child. As indicated above, Tunsil received consecutive
sentences for the crimes of unlawful contact with a minor, aggravated
indecent assault of a child, corrupting the morals of a minor, EWOC, and
indecent assault, which amounted to 25 to 54 years’ incarceration. Pursuant
to Zirkle, given the natures of the crimes at issue and the circumstances
surrounding those convictions as well as the length of his sentence, we
conclude the trial court’s decision to impose consecutive sentences did not
result in a facially excessive sentence. Therefore, Tunsil’s claim fails to raise
a substantial question. See id.16
____________________________________________
15 The victim even testified to the following: “Well, when I usually didn’t eat
all my food, he’ll put me downstairs in the basement where it’s like a big hole
and then he’ll say it’s like rats down there and then he’ll put peanut butter all
over me and tie me up to the wall.” N.T., 10/2/2014, at 26.
16 In any event, we note:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
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Moreover, to the extent Tunsil claims his aggregate sentence amounts
to cruel and unusual punishment, we find his assertion is just another
reiteration of his manifestly excessive argument. Nevertheless, we note both
the Eighth Amendment of the United States Constitution and Article 1, Section
13 of the Pennsylvania Constitution, forbid the imposition of “cruel and
unusual punishments.” U.S. Const., amend. VIII; Pa. Const., Art. 1, Sec. 13.
See Commonwealth v. Spells, 612 A.2d 458, 461 (Pa. Super. 1992) (the
guarantee against cruel punishment in the state and federal constitutions is
coextensive), appeal dismissed as improvidently granted, 643 A.2d 1078 (Pa.
1994). This Court has explained that a punishment is cruel and unusual if it
____________________________________________
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa. Super. 2013). Here, the
trial court addressed Tunsil’s challenge as follows:
This Court took into account all of the factors delineated in 42
Pa.C.S. § 9721(b). As stated on the record, this Court considered
all of the reports, the arguments of counsel, the testimony from a
lengthy sentencing hearing and the guidelines in fashioning an
appropriate sentence. Here based on [Tunsil]’s prior history of
sexually abusing children and the high risk that given the chance
he would reoffend, a sentence running consecutive was
reasonable and appropriate.
Trial Court Opinion, 9/2/2016, at 6. Based on the record, we would find the
trial court did not abuse its discretion in imposing Tunsil’s sentence.
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is “wholly and irrationally disproportionate to the crime,”17 or, in other words,
“so greatly disproportionate to an offense as to offend evolving standards of
decency or a balanced sense of justice.” Commonwealth v. Ehrsam, 512
A.2d 1199, 1210 (Pa. Super. 1986), appeal denied, 527 A.2d 535 (Pa. 1987),
cert. denied, 439 U.S. 932 (1989). Here, as provided above, we conclude that
Tunsil’s repeated sexual and emotional abuse of the victim for over a year
warrants the imposition of consecutive sentences and does not amount to
cruel and unusual punishment.18
In his final claim, Tunsil asserts the trial court erroneously concluded
that he was an SVP because the Commonwealth failed to prove such a
determination by clear and convincing evidence. See Tunsil’s Brief at 38.
Prior to analyzing the issue, we sua sponte discuss the impact of the
recent decision in Commonwealth v. Butler, __ A.3d __, 2017 PA Super 344
____________________________________________
17 Commonwealth v. Yasipour, 957 A.2d 734, 743 (Pa. Super. 2008),
appeal denied, 980 A.2d 111 (Pa. 2009).
18 We also note Tunsil’s reliance on Barnett is misplaced. As indicated above,
Tunsil alleges the facts in that case are more lurid than in the present matter
and therefore, his sentence should be considered cruel and unusual. However,
Tunsil’s claims fails to take into consideration that he was convicted of a more
serious offense, aggravated indecent assault, than the defendant in Barnett.
Therefore, one cannot conclusively determine that one case is more “lurid”
than another. Accordingly, his argument fails.
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[1225 WDA 2016] (Oct. 31, 2017),19 which addressed the issue of “whether
the framework for designating a convicted defendant an SVP, which in this
case increased Appellant’s minimum registration requirement [under the
Pennsylvania’s Sex Offender Registration and Notification Act (SORNA), 42
Pa.C.S. §§9799.10-9799.41], implicates the legality of his or her sentence.”
Butler, __ A.3d at __, 2017 PA Super 344, *4 (Oct. 31, 21017).20 The Butler
court further explained the issue as follows:
To understand the issue presented in this case, it is necessary to
review the relevant portions of SORNA that address SVPs. Under
SORNA, an individual convicted of a sexually violent offense, such
as sexually corrupting minors in this case, must be evaluated by
the SOAB. 42 Pa.C.S.A. § 9799.24(a). The SOAB conducts a 15-
factor analysis to determine if the individual should be designated
____________________________________________
19 “[T]he general rule in Pennsylvania is to apply the law in effect at the time
of the appellate decision.” Commonwealth v. Housman, 986 A.2d 822, 840
(Pa. 2009).
20 While we acknowledged Tunsil did not raise the issue of Butler’s
application to his case, we are guided by the following:
Generally, issues not raised before the trial court are waived for
appellate purposes. Pa.R.A.P. 302(a). Similarly, this Court
generally may not reverse, modify, or vacate an order or
judgment of sentence for a reason not raised by the parties. See
Johnson v. Lansdale Borough, 146 A.3d 696, 709 (Pa. 2016)
(citations omitted). Notwithstanding these general rules, “[a]
challenge to the legality of a particular sentence may be reviewed
by any court on direct appeal; it need not be preserved in the
lower courts to be reviewable and may even be raised by an
appellate court sua sponte.” Commonwealth v. Batts, 163 A.3d
410, 434 (Pa. 2017) (citation omitted).
Butler, __ A.3d at __, 2017 PA Super 344, *4 (Oct. 31, 21017). With respect
to legality of sentencing questions, our standard of review is de novo and our
scope of review is plenary. See Commonwealth v. Nero, 58 A.3d 802, 805
(Pa. Super. 2012).
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an SVP. 42 Pa.C.S.A. § 9799.24(b). The SOAB then submits a
report to the prosecuting authority. 42 Pa.C.S.A. § 9799.24(d).
Upon praecipe by the prosecuting authority, the trial court
schedules an SVP hearing. 42 Pa.C.S.A. § 9799.24(e)(1). At the
conclusion of that hearing, “the court [determines] whether the
Commonwealth has proved by clear and convincing evidence that
the individual is a[n SVP].” 42 Pa.C.S.A. § 9799.24(e)(3). It is
this last step in the process, section 9799.24(e)(3), that is at issue
in this case.
Butler, __ A.3d at __, 2017 PA Super 344, *6-7 (Oct. 31, 21017).
The Butler court relied on a recent decision by the Pennsylvania
Supreme Court in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). In
Muniz, the Supreme Court reversed the longstanding legal precedence of this
Commonwealth by holding that registration requirements under SORNA were
not civil in nature but punitive, and, consequently, the retroactive application
of SORNA’s registration provisions violated the ex post facto clauses of the
United States and Pennsylvania Constitutions. Id. at 1218.
The Butler court also noted the current controlling law with respect to
mandatory minimum sentences. In Alleyne v. United States, 133 S.Ct.
2151 (U.S. 2013), the United States Supreme Court held that “[a]ny fact that,
by law, increases the penalty for a crime is an ‘element’ that must be
submitted to the jury and found beyond a reasonable doubt.” Alleyne, 133
S.Ct. at 2155. The Court expanded upon its holding in Apprendi,21 which
applied only to facts that increased the statutory maximum for a crime, to
____________________________________________
21 Apprendi v. New Jersey, 530 U.S. 466 (2000).
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include facts, which increase the mandatory minimum sentence. Id. The
Butler court stated:
Apprendi and Alleyne apply to all types of punishment, not just
imprisonment. See S. Union Co. v. United States, 567 U.S.
343, 346-360, 132 S. Ct. 2344, 183 L. Ed. 2d 318 (2012). Thus,
as our Supreme Court has stated, if registration requirements are
punishment, then the facts leading to registration requirements
need to be found by the fact-finder chosen by the defendant, be
it a judge or a jury, beyond a reasonable doubt. See
Commonwealth v. Lee, 594 Pa. 266, 935 A.2d 865, 880 (Pa.
2007). In Lee, our Supreme Court considered whether Megan’s
Law II’s[22] requirement that SVPs register for life violated
Apprendi. Our Supreme Court stated that defendants only
succeeded on their claim
if [our Supreme Court] accept[s] the premise, which [it had]
all but categorically rejected in [its] prior cases, that the
registration, notification, and counseling provisions of
Megan’s Law II [were] punitive in the constitutional sense,
thus requiring observance of all the due process protections
that attend criminal prosecution, especially those identified
by the [Supreme Court of the United States’] decision in
Apprendi.
Id.
Butler, __ A.3d at __, 2017 PA Super 344, *10-11 (Oct. 31, 21017).
With Muniz, Alleyne, and Apprendi in mind, the Butler court then
held:
We recognize that our Supreme Court did not consider the
ramifications of its decision in Muniz with respect to individuals
designated as SVPs for crimes committed after SORNA’s effective
date. Nonetheless, our Supreme Court’s holding that registration
requirements under SORNA constitute a form of criminal
punishment is dispositive of the issue presented in this case. In
other words, since our Supreme Court has held that SORNA
____________________________________________
22 Megan’s Law was the predecessor to SORNA.
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registration requirements are punitive or a criminal penalty to
which individuals are exposed, then under Apprendi and
Alleyne, a factual finding, such as whether a defendant has a
“mental abnormality or personality disorder that makes [him or
her] likely to engage in predatory sexually violent offenses[,]” 42
Pa.C.S.A. § 9799.12, that increases the length of registration
must be found beyond a reasonable doubt by the chosen fact-
finder. Section 9799.24(e)(3) identifies the trial court as the
finder of fact in all instances and specifies clear and convincing
evidence as the burden of proof required to designate a convicted
defendant as an SVP. Such a statutory scheme in the criminal
context cannot withstand constitutional scrutiny. Accordingly, we
are constrained to hold that section 9799.24(e)(3) is
unconstitutional and [the a]ppellant’s judgment of
sentence, to the extent it required him to register as an SVP
for life, was illegal.
As the sole statutory mechanism for SVP designation is
constitutionally flawed, there is no longer a legitimate path
forward for undertaking adjudications pursuant to section
9799.24. As such, trial courts may no longer designate
convicted defendants as SVPs, nor may they hold SVP
hearings, until our General Assembly enacts a
constitutional designation mechanism.12 Cf.
Commonwealth v. Hopkins, 632 Pa. 36, 117 A.3d 247, 258-
262 (Pa. 2015) (finding that trial courts cannot impose mandatory
minimum sentences until the General Assembly enacts a statute
which provides a constitutional mechanism to determine if the
defendant is subject to the mandatory minimum sentence).
Instead, trial courts must notify a defendant that he or she is
required to register for 15 years if he or she is convicted of a Tier
I sexual offense, 25 years if he or she is convicted of a Tier II
sexual offense, or life if he or she is convicted of a Tier III sexual
offense.
In sum, we are constrained to hold that section 9799.24(e)(3) of
SORNA violates the federal and state constitutions because it
increases the criminal penalty to which a defendant is exposed
without the chosen fact-finder making the necessary factual
findings beyond a reasonable doubt. Moreover, we are
constrained to hold trial courts cannot designate convicted
defendants SVPs (nor may they hold SVP hearings) until our
General Assembly enacts a constitutional designation mechanism.
Instead, trial courts must notify a defendant that he or she is
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required to register for 15 years if he or she is convicted of a Tier
I sexual offense, 25 years if he or she is convicted of a Tier II
sexual offense, or life if he or she is convicted of a Tier III sexual
offense.
_____________________
12 Allowing a jury or the trial court (in a waiver trial) to
make an SVP determination during the guilt phase of a trial
runs counter to the plain language of section 9799.24(e)(3)
of SORNA and raises a myriad of other constitutional
concerns. Because of these problems, and because Muniz
now deems SORNA a punitive statute and no longer a
collateral civil consequence of a sex offense conviction, we
are constrained to hold that the adjudicative provisions
found in section 9799.24(e)(3) are no longer constitutional
and not severable from the remainder of the SVP
designation framework.
Id. at 11-14 (emphasis added; one footnote omitted).
Turning to the present matter, SORNA applies to Tunsil’s case, in which
he was deemed an SVP at the April 25, 2016, SVP hearing and ordered to
comply with the lifetime registration requirements based on his aggravated
indecent assault conviction. See 42 Pa.C.S. 9799.13(1) (SORNA applies to a
person convicted of a “sexually violent offense” on or after the effective date
of the section, which was December 20, 2012); § 9799.12 (defining “sexually
violent offense” as Tier I, II, or III offense listed in § 9799.14); §
9799.14(d)(7) (classifying aggravated indecent assault as a Tier III sexual
offense); § 9799.15(a)(3) (“[a]n individual convicted of a Tier III sexual
offense shall register for the life of the individual”).
Accordingly, and pursuant to the Butler decision, we are constrained to
reverse the trial court’s April 25, 2016, sentencing order finding that Tunsil is
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an SVP as such a determination is no longer valid. Therefore, we remand for
the sole purpose of having the trial court issue the appropriate notice under
42 Pa.C.S § 9799.23 as to his registration requirements. Butler, __ A.3d at
__, 2017 PA Super 344, *13 (Oct. 31, 21017). Furthermore, we need not
address the issue Tunsil raised on appeal, which challenged the sufficiency of
his SVP designation.
Order reversed. Judgment of sentence affirmed in all other respects.
Case remanded. Jurisdiction relinquished.23
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2017
____________________________________________
23 In conjunction with our decision, we grant the Commonwealth’s May 12,
2017, motion to correct an omission in the record pursuant to Pa.R.A.P. 1926.
We agree the missing documents were useful to the resolution of the issues
on appeal.
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Com. v. Tunsil, B.
Combined Opinion