Commonwealth v. Halye , 1998 Pa. Super. LEXIS 2820 ( 1998 )

DEL SOLE, Judge:

Following a jury trial, Appellant was convicted of two counts of involuntary deviate sexual intercourse, two counts of indecent assault, one count of corruption of minors and one count of endangering the welfare of children. Thereafter, the trial court initiated procedures to determine whether to classify Appellant as a “sexually violent predator,” under the Registration of Sexual Offenders Act, 42 Pa.C.S.A. §§ 9791 - 9799.6 [the Act.] Following a report by the Sexual Offenders Assessment Board and a hearing, the court held that Appellant did not rebut the Act’s presumption and, therefore, he was a “sexually violent predator.” At sentencing the court also found Appellant was a “high risk dangerous offender” under 42 Pa.C.S.A. § 9714 ¹. In accordance with the mandatory minimum sentencing requirements of § 9714 and the mandatory maximum sentencing requirement of a life sentence under the Act, 42 Pa.C.S.A. § 9799.4, Appellant was directed to serve an aggregate term of imprisonment of 138 months to life. Appellant filed a post-sentencing motion challenging the constitutionality of the Act. The court denied it and this appeal followed. Finding merit in two of Appellant’s claims, we vacate his sentence and remand for resentencing.

The questions presented for our review are whether the evidence is sufficient to sustain Appellant’s conviction for endangering the welfare of children and whether the Act is constitutional. The constitutional challenge made by Appellant is based on a number of specific attacks on provisions of the Act, which are alleged to be violative of the Pennsylvania and United States Constitutions.² Because we conclude that the Act improperly places the burden of persuasion on a defendant in violation of federal procedural due process and is, therefore, unconstitutional, we need not examine the other constitutional questions raised by Appellant.

Before turning to Appellant’s constitutional question, we will address his concern that the evidence presented by the Commonwealth was insufficient to sustain his conviction for endangering the welfare of children. The elements of this criminal offense are set forth in 18 Pa.C.S.A. § 4304, which provides:

Offense defined. -A parent, guardian, or other person supervising the welfare of a child under 18 years of age commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.

Appellant specifically alleges that he was not the parent or guardian of the child-victim and the Commonwealth did not establish that he was supervising the welfare of the child at the time of the assault. In reviewing a sufficiency of the evidence claim, we view the evidence, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth. Commonwealth v. Rose, 463 Pa. 264, 344 A.2d 824 (1975). A mere conflict in the testimony does not render the evidence insufficient, Commonwealth v. Verdekal, 351 Pa.Super. 412, 506 A.2d 415 (1986), because it is within the province of the fact finder to determine the weight to be given to the testimony and to believe all, part, or none of the evidence. Commonwealth v. Whitfield, 475 Pa. 297, 380 A.2d 362 (1977).

At trial the victim’s mother testified that Appellant, who was her second or third cousin, had come to her home with her former mother-in-law for a visit. The witness stated that her husband, her son and her daughter were also at home that evening. The children were playing in a bedroom while the adults were in another part of the home. At one point, Appellant indicated that he had to go to the bathroom. When he did not promptly return, and the children became quiet, the mother testified that she became concerned and walked back to the bedroom to check on them. Her daughter was seen sitting on the edge of the bed playing a game by herself. Upon opening a closet door, Appellant was discovered with his head placed near her son’s exposed privates.

Despite the criminal nature of Appellant’s actions, which support his convictions for involuntary deviate sexual intercourse, indecent assault and corruption of minors, there is insufficient evidence of Appellant’s role as a supervisor or guardian of the child to support the endangering the welfare of children conviction. No testimony was presented to indicate that Appellant was asked to supervise the children or that such a role was expected of him. Rather, Appellant was a visitor in the child’s home. The child’s parents were home and were supervising their children. This is evidenced by the mother’s remarks that her concern for the children led her to check on them and to discover the assault by Appellant.

There is insufficient evidence to sustain a conviction for child endangerment where the Commonwealth fails to prove any statutory element. Commonwealth v. Pahel, 456 Pa.Super. 159, 689 A.2d 963 (Pa.Super.1997). In this matter, viewing the evidence in the light most favorable to the Commonwealth, we conclude that it failed in its burden Of proving that Appellant was in the position of supervising the children at the time of the assault. Accordingly we reverse Appellant’s conviction for endangering the welfare of children.

Appellant’s conviction on the charges of involuntary deviate sexual intercourse and indecent assault led to the court’s initiation of procedures to determine if Appellant was a “violent sexual predator.” The court’s ultimate finding and imposition of sentence, which included a mandatory maximum term of life imprisonment under the Act, caused Appellant to question its constitutionality. Among the claims made is that the Act improperly shifts the burden of persuasion to the defendant, in violation of federal procedural due process rights.

The Act, often referred to as Pennsylvania’s Megan’s Law, contains certain registration and notification provisions, as well as the mandatory maximum sentencing requirement, for those deemed violent sexual predators. Individuals convicted of certain specified sexually violent offenses are to be assessed by a state board composed of psychiatrists, psychologists and criminal justice experts, after conviction, but before sentencing. 42 Pa.C.S.A. § 9794(a) and § 9799.3. The Act declares that a presumption shall be applied in making this assessment. It specifically states:

An offender convicted of any offense set forth in section 9793(b)[listing certain sexually violent offenses] shall be presumed by the board and the court to be a sexually violent predator. This presumption may be rebutted by the offender by clear and convincing evidence at a hearing held in accordance with subsection (e).

42 Pa.C.S.A. § 9794(b).

Subsection (e) carries the presumption to the hearing stage of the proceeding. Within 60 days from the date of conviction, the board is required to submit a report to the court. 42 Pa.C.S.A. § 9794(d). Upon receipt of the report, and prior to sentencing, the court is directed to hold a hearing to determine if the offender is a sexually violent predator. 42 Pa.C.S.A. § 9794(e). After review of all the evidence presented at the hearing the court is to decide whether the presumption has been rebutted. Id.

Those not classified as “sexually violent predators” are required to register with the state police upon their release. The information gathered is then provided to the chief law enforcement officer of the police department of the municipality in which the offender will reside. 42 Pa.C.S.A. § 9793.

Those classified by the court as “sexually violent predators” are subject to certain registration and notification requirements under the Act which are much broader in scope than the registration and notification requirements applied to sex offenders who are not given this classification. 42 Pa.C.S.A. §§ 9795, 9797 and 9798. In addition, sexually violent predators are subject to a mandatory maximum sentence of life under 42 Pa. C.S.A. § 9799.4(a), mandatory counseling under § 9799.4(b), and mandatory life imprisonment if subsequently convicted of a sexually violent offense under § 9799.4(e). Thus, there is a diseernable difference between those who are sex offenders and those classified by the court as “sexually violent predators.” Van Doren v. Mazurkiewicz, 695 A.2d 967 (Pa.Cmwlth.1997).

This Court has had occasion to consider the constitutional validity of the registration provisions of the Act. Commonwealth v. Mountain, 711 A.2d 473 (Pa.Super. 1998). In Mountain, the sentencing court agreed with the report of the state board that the appellant did not fit the profile of a sexually violent predator, but nevertheless he remained subject to the registration procedures applicable to sexual offenders. The appellant challenged these procedures arguing that he was deprived of both federal and state procedural due process when a hearing was not held prior to the imposition of the registration requirements. We rejected the claim noting that this Court, in Commonwealth v. Gaffney, 702 A.2d 565 (Pa.Super.1997), held that the registration provisions of the Act are non-punitive. The panel in Mountain ruled that absent the deprivation of a liberty or property interest, a substantive or procedural due process claim will not survive. Mountain, 711 A.2d at 480.

In Gaffney a panel of this Court rejected a constitutional challenge to the Act which alleged that it violated the ex post facto clauses of the United States and Pennsylvania Constitutions. Gaffney, 702 A.2d 565. In dismissing this claim, the panel relied heavily on the decisions of two United States Third Circuit cases, Artway v. Attorney General, 81 F.3d 1235 (3d Cir.1996), and E.B. v. Verniero, 119 F.3d 1077 (3d Cir.1997). In those decisions the courts were reviewing constitutional challenges to New Jersey’s Megan’s Law. The Gaffney court utilized a three-prong test formulated by the circuit court decisions to determine whether a legislative enactment qualifies as a punishment. It considered whether: “(1) the legislature’s actual purpose is punishment, (2) the ‘objective’ purpose is punishment, or (3) the effect of the statute is so harsh that ‘as a matter of degree’ it constitutes punishment.” Gaffney 702 A.2d at 567.

The Gaffney court noted that this comprehensive test was applied by the Third Circuit in Artway, which concluded that the registration provisions in the New Jersey version of Megan’s Law were not punishment and therefore the ex post facto clause of the United States Constitution was not violated. Id. While remarking that these federal decisions are not binding upon this Court, the Gaffney court ruled that it is appropriate for this Court to follow these Third Circuit decisions absent a ruling by the United States Supreme Court. Id. Accordingly it held that given the substantive identity of the Pennsylvania and New Jersey statutes, and absent evidence that the effects of the two statutes differ, the registration provisions do not violate the ex post facto Clause of the United States Constitution.

A like result was achieved by the Commonwealth Court in Van Doren v. Mazurkiewicz, 695 A.2d 967 (Pa.Cmwlth.1997). Therein the appellant claimed that the registration provisions of the Act constitute additional punishment and therefore violate the double jeopardy and ex post facto clauses of the United States Constitution. The court noted that the Third Circuit Court in Artway rejected this same challenge and that the analysis set forth by the Third Circuit compelled a similar conclusion in its case with respect to Pennsylvania’s version of Megan’s Law. Id. at 975.

The question we address in this case concerns not the registration requirements, but rather the presumption imposed on those undergoing evaluation and characterization by a board and a court when considering whether to classify an offender as a “sexually violent predator.” The specific claim is that these provisions violate the procedural due process protections of the United States Constitution. However, much like the courts in Mountain, Gaffney and Van Doren, which relied on the Third Circuit Court decisions concerning the ex post facto claims, we too have the benefit of the Third Circuit Court’s ruling on the procedural due process issue.

In E.B. v. Verniero, 119 F.3d 1077 (1997), a procedural due process claim was made in addition to ex post facto and double jeopardy claims. The appellants in Vemiero claimed due process requires that the state rather than the registrant carry the burden of persuasion at a Megan’s Law hearing and that the state demonstrate the propriety of the classification by clear and convincing evidence. Id. at 1106.

The Vemiero court recognized that the appellants’ claim of entitlement to procedural due process falls under the provision of the Fourteenth Amendment of the United States Constitution, which provides that “no person shall be deprived of life, liberty or property without due process of law.” U.S. Const. Amend. XIV. The court noted that the appellants had a liberty interest granted by state law of which they could not be deprived without being accorded the process due under the Fourteenth Amendment. Verniero at 1105. In considering what process is due, and whether a shift in the burden of persuasion can be tolerated, the court considered three distinct factors: (1) the private interest affected by the official action; (2) the risk of an erroneous deprivation of such an interest through the procedures used; and (3) the value of the government’s interest, including the function involved and the burdens that an additional or substitute procedural requirement would entail. Id. at 1106 (citing Mathews v. Eldridge, 424 U.S. 319, 334-335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)).

The court first considered the private and public interest involved with the state’s notification procedure for those classified as moderate (Tier 2) or high (Tier 3) risks. The notifications involved with a Tier 2 registrant under the New Jersey law includes “‘law enforcement, school and community organization alert,’ issue[d] to registered schools, day care centers, summer camps, and other community organizations which care for children or provide support to women and where individuals are likely to encounter the sex offender.” Id. at 1082 (citing N.J.S.A. 2C:7-8c(2)). Tier 3 registrants are subject to community notification in which members of the public who are likely to encounter the registrant are notified. Id.

The court found that under this system the private interest affected by the notification system is very substantial for it “puts the registrant’s livelihood, domestic tranquility and personal relationships with all around him in grave jeopardy.” Id. at 1107. It further noted the state has a compelling interest in protecting its citizens by giving prompt notifications to those who may potentially be harmed, while at the same time it has an interest in ensuring that its classification and notification system is fair and accurate. Id. After examining these competing interests the court concluded that the burden of proof must remain with the state if the risk of error will be materially reduced without materially impairing the state’s ability to secure a prompt determination and without the imposition of substantial new administrative burdens. Id.

In assessing the risk of error, the Vemiero court observed the fact-finding function involved is made difficult because sex crimes generally have a limited number of witnesses which creates the need for credibility determinations. Id. at 1108. Further, the issues are resolved in a proceeding in which the rules of evidence are not applied and the proceedings have a strict timetable. Thus, it reasoned that the assignment of the burden of persuasion to the prosecutor will substantially reduce the risk of an erroneous outcome. Id.

Finally it considered whether an allocation of the burden of persuasion to the state would materially impair the state’s ability to receive a prompt determination or impose new administrative burdens on it. Id. After concluding there was an absence of any substantial economic or other burden to the state, it ruled that due process requires that the prosecutor shoulder the burden of persuasion. Id. at 1109.

The Vemiero court’s rationale can be readily applied when considering Appellant’s constitutional challenge to the Act. Although the Act differs in many respects from the New Jersey version of Megan’s Law, the differences only create further support for the conclusion that it is appropriate for the burden of persuasion to be with the prosecution. Like the New Jersey statute, the Pennsylvania Act and its notification procedures for those classified as sexually violent predators, impacts significantly on the registrant’s ability to maintain a private life.

The Act directs that the chief law enforcement officer in the municipality which the predator resides create a notice which includes the offender’s name, his classification as a sexually violent predator, his address, the offense for which he was convicted, and a picture, if available. 42 Pa.C.S.A. § 9798(a). It is to be distributed to neighbors, the director of the children and youth service agency in the county, the superintendent of schools in the area, the director of each licensed day care and preschool program, and the president of any nearby college or university. 42 Pa.C.S.A. § 9798(b). Furthermore the Act has a significant impact on the offender’s freedom as a result of its mandatory maximum sentencing requirement of life imprisonment. 42 Pa.C.S.A § 9799.4(a).

Like the Vemiero court, in assessing the potential risk of error, we must look to the procedure utilized in determining whether an offender is a sexually violent predator and, therefore, subject to the registration, notification and mandatory sentencing requirements of the Act. This is a fact-finding function made after an initial assessment of a board. As with the New Jersey statute, time restraints are involved since the board’s assessment must be made no later than 60 days from the date of the offender’s conviction. 42 Pa.C.S.A § 9794(d). The board is asked to consider factual matters such as the offender’s age, and prior record and the victim’s age, but it is also required to determine whether the offender displayed “unusual cruelty” and whether there was a “pattern of abuse.” 42 Pa.C.S.A. § 9794(c). Thus, a subjective decision about the offender’s dangerous nature must necessarily be made. And, although the offender has a right to call witnesses and cross-examine witnesses, the rules and procedure followed in a trial do not apply. Thus the concern identified in Vernier o, of materially reducing the risk of error by placing the burden of persuasion with the prosecutor, is equally at issue here.

Finally, we perceive no material impairment on the state’s ability to secure a prompt determination by requiring it to shoulder the burden of persuasion. Thus, following the lead of the Third Circuit Court in Vemiero, we too find due process requires that the prosecution carry the burden of persuasion.

The Third Circuit has carefully weighed this exact question as it applies to the New Jersey statute. While its decision is not binding, we find it is appropriate for this Court to follow its ruling in view of the like purposes and requirements of the Acts. In fact, the effect of the Pennsylvania Act is more severe since it imposes even more restrictions on an offender’s liberty with its maximum mandatory life imprisonment provisions. We therefore hold that the Act’s provisions which require an offender to rebut a presumption which arises if the offender has been convicted of certain enumerated crimes, violates the Fourteenth Amendment to the United States Constitution.

Following the lead of the court in Vemiero we also find that due process requires the prosecution to prove the facts by clear and convincing evidence, rather than merely by a preponderance of the evidence. As the Third Circuit stated:

Because ‘the possible injury to the individual [registrant] is significantly greater then any possible harm to the state,’ the registrant, consistent with due process, cannot ‘be asked to share equally with society the risk of error. [Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) ] 441 U.S. at 427[, 99 S.Ct. 1804]. It necessarily follows that the Due Process Clause requires that the state prove its case by clear and convincing evidence in a Megan’s Law proceeding.

Verniero, 119 F.3d at 1077.

This high standard of proof is constitutionally required where, as here, the designation of one as a “sexually violent predator” is separate and distinct from both the trial and sentencing and entails a fact-finding function. As noted, the designation has severe results and this measure of due process must be afforded an offender to protect against erroneous outcomes.

For these reasons we conclude that the due process clause of the federal constitution is violated by the provisions of the Act which requires the offender to rebut a presumption and which do not impose upon the prosecution the burden of persuasion by clear and convincing evidence. As a consequence, we strike as unconstitutional § 9794 of Title 42 and all remaining sections of the Act which refer to the designation of a “sexually violent predator.” Accordingly, we reverse Appellant’s conviction for endangering the welfare of children and we vacate the judgment of sentence on Appellant’s remaining convictions and remand for resentencing absent application of the provisions of the Act.

McEWEN, President Judge, files a concurring statement.

FORD ELLIOTT and JOYCE, JJ., file concurring and dissenting opinions.

ORIE MELVIN, J., files a concurring opinion.

1 . Appellant makes no challenge in this appeal to his classification as a "high risk dangerous offender” or to the mandatory sentencing provisions applicable to this classification, therefore such matters will not be considered in this appeal.

2 . Appellant lists the following constitutional challenges: 1.) whether the adjudication and notification requirements of the Act violate the double jeopardy clauses of the Pennsylvania and United States Constitution; 2.) whether the Act violates substantive due process; 3.) whether the sexually violent predator provisions are unconstitutionally vague; 4.) whether the sexually violent predator provisions subject defendants to cruel and unusual punishment prohibited by the state and federal constitutions; 5.) whether the Act violates procedural due process because it fails to afford the defendant any opportunity to be heard and because it imposes the burden of persuasion on the defendant; and 6.) whether the notification requirements of the Act violate state and federal rights to privacy.