R.O. v. Mr. T.C. Blocker, State Police Commissioner ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
R.O., :
Petitioner :
:
v. : No. 256 M.D. 2020
: Submitted: September 30, 2022
Mr. Tyree C. Blocker, State :
Police Commissioner, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: August 28, 2023
Before the Court are cross-applications for summary relief filed by R.O.
(Petitioner) and Mr. Tyree C. Blocker, now former State Police Commissioner
(Respondent). Petitioner commenced this action in the Court’s original jurisdiction
in March 2020 by filing a pro se Petition for Review,1 challenging the
constitutionality of subchapter I of the most recent enactment of a sexual offender
registration scheme, Act of June 12, 2018, P.L. 140, No. 29 (Act 29), 42 Pa.C.S.
§§ 9799.10-9799.75.2 Therein, Petitioner averred he was convicted in June 1988 of
1
Although entitled “Application for Summary Relief,” the Court treated the pleading as a
petition for review in the Court’s original jurisdiction. See May 12, 2020 order.
2
Act 29 amended the Act of February 21, 2018, P.L. 27, No. 10 (Act 10). Act 10 and Act
29 are collectively referred to herein as Act 29. Through Act 29, the General Assembly passed
the newest version of a sexual offender registration and notification act in response to the Supreme
(Footnote continued on next page…)
kidnapping, and because kidnapping is not a sexual offense, he is not required to
register under any sexual offender registration scheme. According to Petitioner,
applying Act 29 to him violates the prohibition against ex post facto laws3 as his
offense occurred before any sexual offender registration laws were enacted.
Petitioner previously filed an application for summary relief on those bases, which
this Court denied in a Memorandum Opinion and Order filed May 24, 2021.4 (See
May 24, 2021 Memorandum Opinion and Order.)
Thereafter, Petitioner filed the instant Application for Summary Relief,
wherein he asserts because he and the mother of the minor he was convicted of
kidnapping were married, he should not have been convicted of kidnapping but
rather unlawful restraint of a minor. (Petitioner’s Application ¶¶ 1-3; see also
Petitioner’s Brief at 2-3.) In support of his Application, Petitioner attaches to his
brief what purportedly is a handwritten letter dated December 28, 1987, from an
individual identifying herself as Petitioner’s wife, claiming she was drugged and
coerced into giving statements against her will to police about Petitioner. Also
attached thereto is a divorce decree dated June 1, 1998, from the Court of Common
Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). Section 9799.51(b)(4)
of Act 29, 42 Pa.C.S. § 9799.51(b)(4). In subchapter I, the General Assembly also established
new registration requirements for: (1) individuals who committed offenses between April 22,
1996, and December 20, 2012, whose registration period had not expired; and (2) offenders who
were required to register under a prior Sexual Offender Registration and Notification Act statute
between April 22, 1996, and December 20, 2012, whose registration period had not yet expired.
See Section 9799.52 of Act 29, 42 Pa.C.S. § 9799.52.
3
Article I, section 17 of the Pennsylvania Constitution provides, “No ex post facto law . . .
shall be passed.” PA. CONST. art. I, § 17. The United States Constitution has two provisions that
prohibit ex post facto laws, one, contained in Article I, Section 9, Clause 3 of the United States
Constitution, U.S. CONST. art. I, § 9, cl. 3, which applies to Congress, and the other, contained in
Article I, Section 10, Clause 1 of the United States Constitution, U.S. CONST. art. I, § 10, cl. 1,
which applies to the states.
4
Petitioner filed a notice of appeal of the May 24, 2021 Order, which the Supreme Court
administratively closed on September 24, 2021.
2
Pleas of Crawford County between the individual identified in the letter and
Petitioner.
Respondent also filed an Application for Summary Relief. Therein,
Respondent argues that, despite Petitioner’s assertions to the contrary, Subchapter I
of Act 29 applies to Petitioner, and, under Supreme Court precedent, Act 29 does
not violate the prohibition against ex post facto laws. (Respondent’s Application ¶¶
7-8.) Consistent with this Court’s Memorandum Opinion and Order denying
Petitioner’s prior application for summary relief, Respondent asks this Court to grant
his Application.
In considering an application for summary relief, the Court “may grant
summary relief where the dispute is legal rather than factual,” there are no facts in
dispute, and the “right to relief is clear.” Phantom Fireworks Showrooms, LLC v.
Wolf, 198 A.3d 1205, 1220 (Pa. Cmwlth. 2018). Further, when ruling on an
application for summary relief, “we review the record in the light most favorable to
the nonmoving party, resolving all doubts as to the existence of disputed material
facts against the moving party.” Marcellus Shale Coal. v. Dep’t of Env’t Prot., 216
A.3d 448, 458 (Pa. Cmwlth. 2019). “Even if the facts are undisputed, the moving
party has the burden of proving that its right to relief is so clear as a matter of law
that summary relief is warranted.” Naylor v. Dep’t of Pub. Welfare, 54 A.3d 429,
431 n.4 (Pa. Cmwlth. 2012).
With these principles in mind, we begin with Petitioner’s Application.
Petitioner argues he should not be subject to the registration requirements because
he was married to the victim’s mother and, therefore, was not guilty of kidnapping.
There are a number of reasons Petitioner’s Application cannot succeed. First, it is a
collateral attack on a 35-year-old criminal conviction, and this is not the appropriate
3
forum for challenging that conviction. Second, Petitioner cannot support his
application for summary relief through inadmissible hearsay or unverified
statements. “An application for summary relief is properly evaluated according to
the standards for summary judgment.” Myers v. Commonwealth, 128 A.3d 846, 849
(Pa. Cmwlth. 2015) (citation omitted). Pennsylvania Rule of Civil Procedure 1035.4
provides:
Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the signer is competent to
testify to the matters stated therein. Verified or certified copies of all
papers or parts thereof referred to in an affidavit shall be attached
thereto or served therewith. The court may permit affidavits to be
supplemented or opposed by depositions, answers to interrogatories, or
further affidavits.
Pa.R.Civ.P. 1035.4.
Courts have held that it was not an abuse of discretion for a trial court to refuse
to consider unsworn statements. Welsh v. Nat’l R.R. Passenger Corp., 154 A.3d
386, 391 (Pa. Super. 2017).5 Similarly, “a motion for summary judgment cannot be
supported or defeated by statements that include inadmissible hearsay evidence.”
Botkin v. Metro. Life Ins. Co., 907 A.2d 641, 649 (Pa Super. 2006). The letter
Petitioner attaches in support of his application is both unsworn and inadmissible
hearsay evidence. Thus, the Court will not consider it. For these reasons,
Petitioner’s Application is denied.
Turning to Respondent’s Application, as set forth in our May 24, 2021
Memorandum Opinion and Order, this matter is controlled by the Supreme Court’s
5
In general, Superior Court decisions are not binding on this Court, but they offer
persuasive precedent where they address analogous issues. Lerch v. Unemployment Comp. Bd. of
Rev., 180 A.3d 545, 550 (Pa. Cmwlth. 2018).
4
decisions in Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020), and T.S. v.
Pennsylvania State Police, 241 A.3d 1091 (Pa. 2020). Accordingly, we grant
Respondent’s Application.
__________________________________________
RENÉE COHN JUBELIRER, President Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
R.O., :
Petitioner :
:
v. : No. 256 M.D. 2020
:
Mr. Tyree C. Blocker, State :
Police Commissioner, :
Respondent :
ORDER
NOW, August 28, 2023, the Application for Summary Relief filed by R.O. is
DENIED. The Application for Summary Relief filed by Mr. Tyree C. Blocker, State
Police Commissioner (Respondent), is GRANTED, and judgment is entered in
favor of Respondent.
__________________________________________
RENÉE COHN JUBELIRER, President Judge