A.L. v. PSP ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
A.L., :
Petitioner :
:
v. : No. 674 C.D. 2020
: Argued: February 8, 2021
Pennsylvania State Police, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE MARY HANNAH LEAVITT, Judge (P.)
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY
PRESIDENT JUDGE BROBSON FILED: March 8, 2021
A.L. (Petitioner) petitions for review of an order of the Pennsylvania State
Police (PSP), dated June 30, 2020. PSP adopted a hearing examiner’s proposed
adjudication and order, thereby affirming the determination of its Megan’s Law
Section that Petitioner’s conviction under Article 120 of the Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 920(b)(3)(A),1 is comparable to a conviction
under Section 3124.1 of the Crimes Code, 18 Pa. C.S. § 3124.1,2 and that Petitioner
1
Article 120 of the UCMJ, 10 U.S.C. § 920(b)(3)(A), provides:
(b) Sexual assault.--Any person subject to this chapter who--
....
(3) commits a sexual act upon another person when the other person is
incapable of consenting to the sexual act due to--
(A) impairment by any drug, intoxicant, or other similar substance,
and that condition is known or reasonably should be known by the
person[.]
(Emphasis added.)
2
Section 3124.1 of the Crimes Code provides: “Except as provided in
section 3121 (relating to rape) or 3123 (relating to involuntary deviate sexual intercourse), a person
should therefore be classified as a Tier III sex offender under Pennsylvania’s Sex
Offender Registration and Notification Act (SORNA),3 42 Pa. C.S. §§ 9799.10-.41,
commits a felony of the second degree when that person engages in sexual intercourse or deviate
sexual intercourse with a complainant without the complainant’s consent.”
3
As we explained in Dougherty v. Pennsylvania State Police, 138 A.3d 152(Pa. Cmwlth. 2016) (en banc):
Courts have also referred to SORNA as the Adam Walsh Act. SORNA is the
General Assembly’s fourth enactment of the law commonly referred to as Megan’s
Law. Megan’s Law I, the Act of October 24, 1995, P.L. 1079 (Spec. Sess. No. 1),
was enacted on October 24, 1995, and became effective 180 days thereafter.
Megan’s Law II[, the Act of May 10, 2000, P.L. 74,] was enacted on
May 10, 2000[,] in response to Megan’s Law I being ruled unconstitutional by our
Supreme Court in Commonwealth v. Williams, . . . 733 A.2d 593 ([Pa.] 1999). Our
Supreme Court held that some portions of Megan’s Law II were unconstitutional
in Commonwealth v. Gomer Williams, . . . 832 A.2d 962 ([Pa.] 2003), and the
General Assembly responded by enacting Megan’s Law III[, the Act of
November 24, 2004, P.L. 1243,] on November 24, 2004. The United States
Congress expanded the public notification requirements of state sexual offender
registries in the Adam Walsh Child Protection and Safety Act of 2006, 42 U.S.C.
§§ 16901-16945, and the Pennsylvania General Assembly responded by passing
SORNA on December 20, 2011[,] with the stated purpose of “bring[ing] the
Commonwealth into substantial compliance with the Adam Walsh Child Protection
and Safety Act of 2006.” 42 Pa. C.S. § 9799.10(1). SORNA went into effect a
year later on December 20, 2012. Megan’s Law III was also struck down by our
Supreme Court for violating the single subject rule of Article III, Section 3 of the
Pennsylvania Constitution. [Cmwlth.] v. Neiman, . . . 84 A.3d 603, 616
([Pa.] 2013). However, by the time it was struck down, Megan’s Law III had been
replaced by SORNA.
Dougherty, 138 A.3d at 155 n.8. Our Supreme Court, by decision and order dated July 19, 2017,
declared SORNA unconstitutional in Commonwealth v. Muniz, 164 A.3d 1189, 1193 (Pa. 2017),
cert. denied, 138 S. Ct. 925 (2018).
The General Assembly responded to the Muniz decision by enacting the Act of
February 21, 2018, P.L. 27 (Act 10). Shortly thereafter, the General Assembly reenacted and
amended various provisions of Act 10 by the Act of June 12, 2018, P.L. 140 (Act 29).
The statutory provisions of Acts 10 and 29 are set forth at 42 Pa. C.S. §§ 9799.10-.75, and we will
refer to them herein as SORNA II.
2
which has since been replaced by SORNA II. For the reasons set forth below,
we reverse PSP’s order.
In March 2014, at a trial by general court-martial, enlisted members of the
armed forces, also known as court members, found Petitioner guilty of a violation of
Article 120 of the UCMJ for “commit[ting] a sexual act upon [an airman] by
penetrating [her] vulva . . . with his penis, when [she] was incapable of consenting
to the sexual act because she was impaired by an intoxicant, to wit: alcoholic
beverages, a condition that was known or reasonably should have been known by
[Petitioner].” (Reproduced Record (R.R.) at 106.) Petitioner was sentenced to
receive a reduction in military rank/pay grade, to be dishonorably discharged, and to
serve 60 days of confinement. (Id. at 107.) Petitioner appealed his conviction to the
United States Navy-Marine Corps Court of Criminal Appeals (Military Appeals
Court), which upheld the court members’ finding of guilt and sentence.
(Id. at 109-12.)
In May 2014, while the appeal of his military conviction was still pending,
Petitioner registered as a sex offender with PSP. (R.R. at 44, 59.) Shortly thereafter,
on June 12, 2014, PSP’s Megan’s Law Section made a determination that
Petitioner’s military conviction is comparable to a conviction under
Section 3124.1 of the Crimes Code and classified Petitioner as a Tier III sex
offender. (Id. at 114.) By letter dated June 9, 2016, after his military conviction
became final, Petitioner requested that PSP reconsider his classification as a Tier III
sex offender, contending (1) that the military offense for which he was convicted is
properly analogous to a Tier I offense, not a Tier III offense, and (2) that SORNA’s
irrebuttable presumption that all sex offenders pose a high risk of recidivism is
unconstitutional as applied to Petitioner because it violates his right to due process.
3
By letter dated June 24, 2016, PSP responded to Petitioner’s request, stating that,
after a review of Petitioner’s file, the relevant statutory provisions, and pertinent case
law, PSP determined that Petitioner’s military conviction was comparable to a
conviction of sexual assault under Section 3124.1 of the Crimes Code, and,
therefore, Petitioner was properly classified as a Tier III sex offender.
Petitioner then filed an action in this Court’s original jurisdiction in the nature
of a request for injunctive and declaratory relief against PSP relative to PSP’s
classification of Petitioner as a Tier III sex offender under SORNA. In his amended
petition for review, Petitioner sought: (1) an order requiring PSP to conduct an
official review of his conviction under Article 120 of the UCMJ, review his sex
offender registration status, and issue a final, appealable decision with regard to his
sex offender registration status; and (2) an order requiring PSP to reclassify him as
a Tier I sex offender or, in the alternative, a declaration that SORNA’s irrebuttable
presumption that all sex offenders have a high risk of recidivism is unconstitutional
as applied to Petitioner. Upon closure of the pleadings, Petitioner filed an
application for summary relief, contending, inter alia, that PSP violated his due
process rights when PSP rendered its equivalency determination and classified him
as a Tier III sex offender based upon his military conviction without conducting an
evidentiary hearing. Petitioner suggested that, because his conviction under the
UCMJ was not the same as any conviction under Pennsylvania law, PSP could not
just simply review his file and the relevant statutory provisions and case law to
determine his appropriate sex offender classification. Rather, PSP first had to
analyze the severity of the military offense for which he was convicted to determine
a comparable offense under Pennsylvania law.
4
By opinion and order dated July 16, 2019, this Court concluded that,
“because [Petitioner] was convicted of an offense not specifically enumerated in
SORNA’s tier classification scheme, PSP necessarily engaged in a nonministerial
act when it [conducted its equivalency determination and thereafter] classified
Petitioner as a Tier III sex offender.” Lopuchin v. Pa. State Police (Pa. Cmwlth.,
No. 587 M.D. 2016, filed July 16, 2019), slip op. at 11. This Court further concluded
that PSP’s equivalency determination constituted an invalid adjudication, because,
“in rendering [such] equivalency determination, PSP did not afford Petitioner
‘reasonable notice of a hearing and an opportunity to be heard,’ as required by
Section 504 of the Administrative Agency Law[,]” 2 Pa. C.S. § 504. Id. As a result,
this Court granted Petitioner’s application for summary relief only to the extent that
it sought an order declaring that PSP was required to “provide Petitioner with a
post-determination administrative remedy and adjudication on the question of
whether [Petitioner] should be designated as a Tier III sex offender as a result of his
military conviction.” Id. at 12.
In response thereto, on October 2, 2019, PSP appointed a hearing examiner to
preside over the post-determination administrative appeal hearing. The hearing
examiner conducted the hearing on December 5, 2019.4 At that time, PSP presented
4
At the beginning of the December 5, 2019 hearing, in response to a request from the
parties’ counsel to define the scope of both the hearing and the hearing examiner’s review of PSP’s
Megan’s Law Section’s equivalency determination, the hearing examiner noted that he had been
tasked to make one of three recommendations: (1) to affirm the Megan’s Law Section’s
equivalency determination and sex offender classification for Petitioner; (2) to reverse the Megan’s
Law Section’s equivalency determination and sex offender classification for Petitioner; or (3) to
propose an alternative equivalency determination and sex offender classification for Petitioner
based upon the evidence presented at the hearing. (R.R. at 30.) Nevertheless, after an
off-the-record discussion held at the conclusion of the hearing, the parties’ counsel noted that they
had agreed that they would “limit [the hearing examiner’s] decision . . . to whether PSP did or did
not make a proper equating decision” with respect to Article 120 of the UCMJ, 10 U.S.C.
5
the testimony of Sergeant Orvis E. Rowles, Jr. (Sergeant Rowles), who has been the
commander of PSP’s Megan’s Law Section since July 2017. (R.R. at 38-39, 58.)
Sergeant Rowles testified that the individual who performed Petitioner’s
equivalency determination left his employment with the Megan’s Law Section
before Sergeant Rowles took over as commander. (Id. at 41, 74.) Sergeant Rowles
explained, however, that, prior to the hearing, he reviewed and familiarized himself
with the file maintained on Petitioner by the Megan’s Law Section in its
Sex Offender Registration Tool system, which included a copy of the results from
his military trial. (Id. at 41-42, 44-45, 106-08.) Sergeant Rowles stated that, based
upon the specification for Petitioner’s military offense as set forth in the results from
his military trial, Petitioner was convicted of a violation of 10 U.S.C. § 920(b)(3)(A).
(Id. at 52-53.) Sergeant Rowles explained that, in order to make its equivalency
determination, the Megan’s Law Section reviewed the elements of 10 U.S.C.
§ 920(b)(3)(A) and compared them to the elements of Pennsylvania sexual offenses.
(Id. at 54-56, 73-74.) Sergeant Rowles explained further that, ultimately, the
Megan’s Law Section determined that Petitioner’s conviction under 10 U.S.C.
§ 920(b)(3)(A) is comparable to a violation of Section 3124.1 of the Crimes Code,
which is a Tier III sexual offense. (Id. at 53-56, 73.)
On May 18, 2020, the hearing examiner issued a proposed adjudication and
order, recommending that the equivalency determination made by PSP’s Megan’s
Law Section—i.e., that Petitioner had been convicted of a Tier III sexual offense—
be affirmed. In so doing, the hearing examiner concluded that Petitioner’s
conviction under 10 U.S.C. § 920(b)(3)(A) was for a military offense comparable to
§ 920(b)(3)(A), and Section 3124.1 of the Crimes Code, and that they would not waive the ability
to address, in the future, whether any other Pennsylvania offenses could potentially be comparable
to a violation of Article 120 of the UCMJ, 10 U.S.C. § 920(b)(3)(A). (Id. at 80-81.)
6
those offenses identified in Section 9799.14(d) of SORNA.5 The hearing examiner,
relying upon a statement made by the Military Appeals Court in its opinion
5
Section 9799.14(d) of SORNA provides:
(d) Tier III sexual offenses.--The following offenses shall be classified as Tier III
sexual offenses:
(1) 18 Pa. C.S. § 2901(a.1) (relating to kidnapping).
(2) 18 Pa. C.S. § 3121 (relating to rape).
(3) 18 Pa. C.S. § 3122.1(b) (relating to statutory sexual assault).
(4) 18 Pa. C.S. § 3123 (relating to involuntary deviate sexual intercourse).
(5) 18 Pa. C.S. § 3124.1 (relating to sexual assault).
(6) 18 Pa. C.S. § 3124.2(a.1) and (a.4)(2).
(7) 18 Pa. C.S. § 3125 (relating to aggravated indecent assault).
(8) 18 Pa. C.S. § 3126(a)(7).
(9) 18 Pa. C.S. § 4302(b) (relating to incest).
(10) 18 U.S.C. § 2241 (relating to aggravated sexual abuse).
(11) 18 U.S.C. § 2242 (relating to sexual abuse).
(12) 18 U.S.C. § 2244 where the victim is under 13 years of age.
(13) A comparable military offense or similar offense under the laws of
another jurisdiction or country or under a former law of this
Commonwealth.
(14) An attempt, conspiracy or solicitation to commit an offense listed in
paragraph (1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12) or (13).
(15) (Reserved).
(16) Two or more convictions of offenses listed as Tier I or Tier II sexual
offenses.
(17) One conviction of a sexually violent offense and one conviction of a
sexually violent offense as defined in section 9799.55 (relating to
registration).
As explained more fully above, the General Assembly replaced SORNA with SORNA II
sometime after PSP’s Megan’s Law Section made its equivalency determination on June 12, 2014.
Given, however, that we are reviewing PSP’s order affirming the equivalency determination made
by its Megan’s Law Section, we will continue to cite and refer to SORNA, rather than SORNA II,
7
upholding Petitioner’s conviction—i.e., that the Military Appeals Court “[found]
compelling evidence that [Petitioner] was aware of [the airman’s] intoxicated state
and intentionally acted to take advantage of her incapacitated condition”—reasoned
that Petitioner “was not convicted upon the arguably negligent element of
‘reasonably should [have] known’ of the victim’s impairment, but instead that
condition was ‘known’ by him.” (R.R. at 111, 171 n.5.) Based on his presumption
that Petitioner was convicted because he “knew” of the airman’s intoxicated state,
the hearing examiner further reasoned:
The mens rea requirement for [Petitioner’s] conviction included,
that he “knew” that his victim was impaired by an intoxicant.
Because this military mens rea standard is at least as high as that for the
Pennsylvania crime, the listed Pennsylvania offenses and the military
offense of sexual assault for which [Petitioner] was convicted have a
sufficiently comparable mens rea requirement.
Tier III sexual offenses involving sexual intercourse thus include
as those other elements: (1) the victim is unconscious or unaware that
sexual intercourse is occurring, (2) the victim has a mental disability
that renders the victim incapable of consent, (3) there was no consent,
or (4) the victim is physically incapable or [sic] declining participation
or communicating unwillingness to participate. An offense where the
victim is incapable of consenting to the sexual act due to impairment
by intoxication and that condition is known by the defendant is certainly
comparable. There is no consent with a person who is incapable of
consenting. While these various sexual offenses involve differing
elements, they all target the same behavior by the defendant—having
sexual intercourse with someone despite recklessly disregarding
whether the victim consented. This is the same behavior targeted by
the military offense—committing a sexual act, i.e., having sexual
intercourse, with a person incapable of consenting due to impairment
by intoxication known to the defendant. The public policy behind all
these offenses is to provide [sic] taking advantage of someone’s lack of
consent or inability to consent to sexual intercourse. The military
throughout the remainder of this opinion. Nevertheless, we note that the statutory provisions at
issue in this case, namely 42 Pa. C.S. §§ 9799.14 and 9799.15, are substantially similar under both
SORNA and SORNA II.
8
offense of sexual assault for which [Petitioner] was convicted is
comparable to the Tier III sexual offenses for which reporting is
required.
. . . . For none of the Tier II or Tier I or lesser offenses is the
victim’s consent or ability to consent such as by an impairment an
element. For none of these offenses does an element touch upon the
victim’s consent or ability to consent. The military offense of sexual
assault for which [Petitioner] was convicted is not comparable to these
Tier II, Tier I[,] and lesser Pennsylvania sexual offenses involving
sexual intercourse.
(R.R. at 9-11 (footnote omitted) (citations omitted).) By order dated June 30, 2020,
PSP adopted the hearing examiner’s proposed adjudication and order as its own final
adjudication and order. Petitioner then appealed PSP’s order to this Court.
On appeal,6 Petitioner argues: (1) PSP committed an error of law by
concluding that Petitioner’s conviction under Article 120 of the UCMJ, 10 U.S.C.
§ 920(b)(3)(A), is equivalent to a conviction under Section 3124.1 of the Crimes
Code; (2) PSP violated the rule of lenity by classifying Petitioner as a Tier III sex
offender rather than a Tier I or Tier II sex offender; and (3) SORNA’s irrebuttable
presumption that all Tier III sex offenders have a high risk of recidivism is
unconstitutional as applied to Petitioner.
First, we will address Petitioner’s argument that PSP committed an error of
law by determining that his conviction under 10 U.S.C. § 920(b)(3)(A) is
comparable to a conviction under Section 3124.1 of the Crimes Code, because PSP
failed to consider the significant differences between a conviction under 10 U.S.C.
§ 920(b)(3)(A) and a conviction under Section 3124.1 of the Crimes Code.
6
This court “will affirm the decision of an administrative agency unless constitutional
rights were violated, an error of law was committed, the procedure before the agency was contrary
to statute, or any finding of fact made by the agency and necessary to support its adjudication is
unsupported by substantial evidence.” D’Alessandro v. Pa. State Police, 937 A.2d 404, 409
(Pa. 2007) (citing Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704).
9
More specifically, Petitioner contends that, in making its equivalency determination,
PSP focused solely on the basic elements of each offense—i.e., the involvement of
sexual intercourse without consent. Petitioner suggests that this “narrow analysis”
neglects to consider the substantial differences between the mens reas required for
each offense, the potential sentence for each offense, and the potential grading for
each offense, all factors that must be considered given the punitive nature of
SORNA. With this in mind, Petitioner contends that there is a significant difference
between the mens rea required for a conviction under 10 U.S.C. § 920(b)(3)(A) and
the mens rea required for a conviction under Section 3124.1 of the Crimes Code—
i.e., a conviction under 10 U.S.C. § 920(b)(3)(A) can be based upon a negligence
mens rea,7 whereas a conviction under Section 3124.1 of the Crimes Code requires
the offender to act with specific intent. Petitioner further contends that PSP’s
reliance upon the Military Appeals Court’s opinion to infer that Petitioner was
convicted, not under a negligence mens rea standard, but rather, because he “knew”
that the airman could not consent, is misplaced, because the Military Appeals
Court’s opinion “does not have any bearing on the mens rea standard used by the
[court members] in the original court[-]martial” but, instead, “exists as part of the
7
In his brief to this Court, Petitioner focuses at least a portion of his argument relevant to
the mens rea required by 10 U.S.C. § 920(b)(3)(A) on the military judge’s instructions to the court
members during Petitioner’s military trial. Petitioner did not, however, introduce the transcript
from his military trial or any other document that would have contained the content of such
instructions into evidence at the time of the December 5, 2019 hearing. Rather, Petitioner
attempted to supplement the record by attaching a copy of certain pages of the transcript from his
military trial to his post-hearing submission to the hearing examiner. (See R.R. at 132, 137-43.)
PSP objected to Petitioner’s attempt to supplement the record, arguing that the appropriate time
and place for the admission of such evidence was at the time of the December 5, 2019 hearing.
(See id. at 153.) Based upon our review of the hearing examiner’s proposed report, it does not
appear that the hearing examiner admitted the contents of the military judge’s instructions to the
court members into the evidentiary record. Thus, we will not consider them on appeal.
10
[M]ilitary [A]ppeals [C]ourt’s determination that ‘a rational factfinder could have
found beyond a reasonable doubt that [Petitioner] committed the offense.’”
(Petitioner’s Br. at 16 (quoting R.R. at 111).) Petitioner further argues that there is
also a significant difference in the sentence that Petitioner received for his conviction
under 10 U.S.C. § 920(b)(3)(A)—i.e., dishonorable discharge, reduction in military
rank, and 60 days of confinement—and the possible sentence under Section 3124.1
of the Crimes Code for a second-degree felony—i.e., a minimum of 36 to 54 months
of confinement. In sum, Petitioner suggests that, when these significant differences
are taken into consideration, it is clear that a conviction under 10 U.S.C.
§ 920(b)(3)(A) is not comparable to a conviction under Section 3124.1 of the Crimes
Code.
In response, PSP argues that it properly focused the scope of its equivalency
determination on a review of the elements of each offense, as it was ordered to do
by this Court, and concluded that a conviction under 10 U.S.C. § 920(b)(3)(A) is
comparable to a conviction under Section 3124.1 of the Crimes Code. PSP further
argues that there is no significant difference between the mens rea required
by 10 U.S.C. § 920(b)(3)(A) and the mens rea required by Section 3124.1 of the
Crimes Code, as the least culpable mens rea required by both offenses is
recklessness. PSP, relying upon the statement made by the Military Appeals Court
in its opinion upholding Petitioner’s conviction, further contends that, contrary to
his contentions, Petitioner “was convicted not because he acted negligently or
recklessly, but because he acted intentionally.” (PSP’s Br. at 13.) Ultimately, PSP
argues that its determination that Petitioner’s conviction under 10 U.S.C.
§ 920(b)(3)(A) is comparable to a conviction under Section 3124.1 of the Crimes
11
Code is supported by substantial evidence, and, therefore, its determination should
be affirmed on appeal.
SORNA established a three-tiered classification system for sex offenders in
Pennsylvania—Tier I sex offenders, Tier II sex offenders, and Tier III sex offenders.
Section 9799.14 of SORNA. A sex offender’s tier classification is determined based
upon the sexual offense for which he/she was convicted and defines the period
during which he/she is required to register with PSP—15 years for a Tier I sex
offender, 25 years for a Tier II sex offender, and lifetime for a Tier III sex offender.
Sections 9799.14 and 9799.15 of SORNA. Included within SORNA’s tier
classification system for sex offenders are those individuals who have been
convicted of “a comparable military offense.” Sections 9799.14 and 9799.15 of
SORNA. When an individual who has been convicted of a military sexual offense
registers with PSP, PSP is tasked with the responsibility of determining the
comparability of that individual’s military sexual offense to a Pennsylvania sexual
offense for purposes of sex offender tier classification and registration requirements.
Section 9799.14(b)(21), (c)(17), and (d)(13) of SORNA. This requires PSP to
consider the elements of the convicted offense and determine whether such elements
are comparable to the elements of a Pennsylvania crime. M.S. v. Pa. State
Police, 212 A.3d 1142, 1148 (Pa. Cmwlth. 2019); see also Freeman v. Pa. State
Police, 2 A.3d 1259, 1262 (Pa. Cmwlth. 2010) (noting that “[t]o determine the issue
of equivalency,” at least in context of denial of application to purchase and carry
firearm, “the necessary focus is on the elements of the offenses”).
Here, PSP concluded that Petitioner’s conviction under 10 U.S.C.
§ 920(b)(3)(A) is comparable to a conviction under Section 3124.1 of the Crimes
12
Code.8 PSP’s entire analysis, however, is based upon a presumption that Petitioner
was convicted because he “knew” that the airman was intoxicated and, therefore,
unable to consent. This presumption is not supported by the evidentiary record.
The document setting forth the results of Petitioner’s military trial demonstrates that
Petitioner was found guilty of a violation of Article 120 of the UCMJ for
“commit[ting] a sexual act upon [an airman] by penetrating [her] vulva . . . with his
penis, when [she] was incapable of consenting to the sexual act because she was
impaired by an intoxicant, to wit: alcoholic beverages, a condition that was known
or reasonably should have been known by [Petitioner].” (R.R. at 106.) There is
absolutely nothing within that document that specifies whether the court members
found Petitioner guilty because he “knew” of the airman’s intoxicated state and
inability to consent or because he “should have known” of the airman’s intoxicated
state and inability to consent. See 10 U.S.C. § 920(b)(3)(A). Thus, in order to make
the presumption that Petitioner “knew” of the airman’s intoxicated state and inability
to consent at the time of the offense, PSP relied upon a statement made by the
Military Appeals Court in its opinion upholding Petitioner’s conviction—i.e., that
the Military Appeals Court “[found] compelling evidence that [Petitioner] was aware
8
The hearing examiner, in his proposed adjudication and order, went even further and
concluded that Petitioner’s conviction under 10 U.S.C. § 920(b)(3)(A) is comparable to all of the
offenses enumerated in Section 9799.14(d) of SORNA. Given, however, that the hearing
examiner’s proposed adjudication and order, which was adopted as a final order by PSP, affirmed
the June 12, 2014 determination made by PSP’s Megan’s Law Section that Petitioner’s conviction
under 10 U.S.C. § 920(b)(3)(A) is comparable only to a conviction under Section 3124.1 of the
Crimes Code, and the parties did not consider the potential equivalency of other Pennsylvania
sexual offenses at the time of the December 5, 2019 hearing, we will limit our review to simply
whether Petitioner’s conviction under 10 U.S.C. § 920(b)(3)(A) is comparable to a conviction
under Section 3124.1 of the Crimes Code. Thus, nothing set forth in this decision should be
construed to mean that this Court does not believe that there is a Pennsylvania sexual offense that
could be comparable to an offense under 10 U.S.C. § 920(b)(3)(A); this Court has simply not
undertaken such an analysis.
13
of [the airman’s] intoxicated state and intentionally acted to take advantage of her
incapacitated condition.” (R.R. at 111, 171 n.5.) PSP ignores, however, that the
Military Appeals Court, an appellate body, reviewed the record to determine whether
there was sufficient evidence to support Petitioner’s conviction and made that
statement simply as a means to conclude that “a rational factfinder could have found
beyond a reasonable doubt that [Petitioner] committed the offense.” (Id. at 111.)
This does not mean that the court members necessarily reached the same conclusion.
There is simply no way for the Military Appeals Court, PSP, or this Court to know
whether the court members found Petitioner guilty of a violation of 10 U.S.C.
§ 920(b)(3)(A) because he “knew” or because he “should have known” of the
airman’s intoxicated state and inability to consent to the sexual act, either of which
would support a conviction under the UCMJ.
With this in mind, we must now consider whether Petitioner’s conviction
under 10 U.S.C. § 920(b)(3)(A) is comparable to a conviction under
Section 3124.1 of the Crimes Code. As explained more fully above, the requisite
culpability—i.e., mens rea—associated with Petitioner’s conviction under 10 U.S.C.
§ 920(b)(3)(A) is that Petitioner either “knew” or “reasonably should have known”
of the airman’s intoxicated state and inability to consent to the sexual act. Under
Pennsylvania criminal law, “reasonably should have known” is most synonymous
with negligent culpability. See Section 302(b)(4) of the Crimes Code, 18 Pa. C.S.
§ 302(b)(4) (“A person acts negligently with respect to a material element of an
offense when he should be aware of a substantial and unjustifiable risk that the
material element exists or will result from his conduct.” (emphasis added)). While
not specifically set forth therein, the offense of sexual assault under
14
Section 3124.1 of the Crimes Code requires the offender to act intentionally,9
knowingly,10 or recklessly.11 See Section 302(c) of the Crimes Code, 18 Pa. C.S.
§ 302(c) (“When the culpability sufficient to establish a material element of an
offense is not prescribed by law, such element is established if a person acts
intentionally, knowingly or recklessly with respect thereto.”). Negligent conduct—
i.e., a sexual act with a complainant when the person “should be aware” that the
complainant was incapable of consent—is not encompassed within
Section 3124.1 of the Crimes Code. For these reasons, we agree with Petitioner that,
because his conviction under 10 U.S.C. § 920(b)(3)(A) could have been based upon
a negligence mens rea—i.e., that he “should have known” of the airman’s
intoxicated state and inability to consent to the sexual act—and, the fact that
negligent conduct is not included within the offense of sexual assault under
Section 3124.1 of the Crimes Code, Petitioner’s conviction under 10 U.S.C.
§ 920(b)(3)(A) is not comparable to a conviction under Section 3124.1 of the Crimes
Code.12 As a result, we conclude that PSP committed an error of law by determining
9
A person acts intentionally if “it is his conscious object to engage in conduct of that nature
or to cause such a result” or “he is aware of the existence of such circumstances or he believes or
hopes that they exist.” Section 302(b)(1)(i)-(ii) of the Crimes Code, 18 Pa. C.S. § 302(b)(1)(i)-(ii).
10
A person acts knowingly if “he is aware that his conduct is of that nature or that such
circumstances exist” or “he is aware that it is practically certain that his conduct will cause such a
result.” Section 302(b)(2)(i)-(ii) of the Crimes Code, 18 Pa. C.S. § 302(b)(2)(i)-(ii).
11
A person acts recklessly if “he consciously disregards a substantial and unjustifiable risk
that the material element exists or will result from his conduct.” Section 302(b)(3) of the Crimes
Code, 18 Pa. C.S. § 302(b)(3).
12
This is not to say that a conviction under 10 U.S.C. § 920(b)(3)(A) could never be
comparable to a conviction under Section 3124.1 of the Crimes Code. There could be
circumstances where the military record is sufficiently specific for PSP to establish the necessary
comparability—i.e., circumstances where the military record evidences that the court members
themselves found that the individual “knew” that the other person was impaired, such that the other
person could not legally consent to the sexual act. Here, however, PSP could not, due to the lack
15
that Petitioner’s conviction under 10 U.S.C. § 920(b)(3)(A) is comparable to a
conviction under Section 3124.1 of the Crimes Code.13
Accordingly, we reverse PSP’s final order.
P. KEVIN BROBSON, President Judge
of record evidence, establish that the conviction was based on a determination that Petitioner
“knew,” as opposed to “should have known,” that the airman was impaired at the time of the
sexual act.
13
Given our disposition above, we need not consider Petitioner’s remaining arguments on
appeal—i.e., that PSP violated the rule of lenity by classifying Petitioner as a Tier III sex offender
rather than a Tier I or Tier II sex offender and that SORNA’s irrebuttable presumption that all
Tier III sex offenders have a high risk of recidivism is unconstitutional as applied to Petitioner.
With respect to Petitioner’s irrebuttable presumption argument, however, we note that, in the event
that any future equivalency determination made by PSP results in a classification of Petitioner as
a Tier III sex offender, or lifetime sex offender registrant, Petitioner would, at that time, have the
ability to challenge the constitutionality of the alleged irrebuttable presumption created by
SORNA. Such a challenge, however, is better suited to an action brought in this Court’s original
jurisdiction.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
A.L., :
Petitioner :
:
v. : No. 674 C.D. 2020
:
Pennsylvania State Police, :
Respondent :
ORDER
AND NOW, this 8th day of March, 2021, the order of the Pennsylvania State
Police, dated June 30, 2020, is REVERSED.
P. KEVIN BROBSON, President Judge