Com. v. Jones, R. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ROD L. JONES, JR. :
:
Appellant : No. 1636 WDA 2016
Appeal from the Judgment of Sentence June 28, 2016
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0008782-2015
BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER*, J.
MEMORANDUM BY SHOGAN, J.: FILED JULY 27, 2018
Appellant, Rod L. Jones, Jr., appeals from the judgment of sentence
entered following his convictions of various sex related offenses committed
upon a family member (“Victim”). In addition, Appellant was determined to
be a sexually violent predator (“SVP”). We affirm the judgment of sentence,
but we vacate the order determining Appellant to be an SVP and remand for
the trial court to issue appropriate notice of Appellant’s registration
requirements as a sex offender.
The trial court summarized the underlying facts of this case as follows:
Briefly, the evidence presented at trial established that
when [Victim] was [13] years old, [Victim’s] mother married
[Appellant]. For two (2) years, the family lived in Whitaker, then
relocated to . . . West Mifflin. On one occasion at the Whitaker
house when [Victim] was 13, [Appellant] came into her room
while she was sleeping, pulled down her pajama pants and
attempted to penetrate her with his penis from behind. [Victim]
pushed [Appellant] away and he left without completing [the]
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* Retired Senior Judge assigned to the Superior Court.
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act. Then, after the family moved to their [West Mifflin]
residence, [Appellant] began a series of assaults on [Victim],
beginning with him performing oral sex on her, her performing
oral sex on him and, eventually, vaginal intercourse. [Appellant]
warned [Victim] not to tell anyone what was occurring, saying
that no one would believe her. [Appellant] also threatened to
tell [Victim’s] mother bad things about [Victim] if she told. The
assaults continued until [Victim] was 17, when she finally told
her mother.
Trial Court Opinion, 5/5/17, at 2.
The trial court set forth the procedural history of this case as follows:
[Appellant] was charged with Rape,1 Involuntary Deviate
Sexual Intercourse with a Person Under 16,2 Unlawful Contact
with a Minor,3 Aggravated Indecent Assault,4 Sexual Assault,5
Statutory Sexual Assault,6 Endangering the Welfare of a Child,7
Corruption of Minors8 and Indecent Assault of a Person Under
16.9 Following a jury trial held before this [c]ourt from April 5-7,
2016, [Appellant] was found guilty of all charges. He appeared
before this [c]ourt on June 28, 2016 and was sentenced to three
(3) consecutive terms of imprisonment of nine (9) to 20 years at
the Rape, IDSI and Unlawful Contact charges, for an aggregate
term of imprisonment of 27-60 years.[1] [Appellant] again
appeared before this [c]ourt on September 22, 2016 for an SVP
hearing and, at its conclusion, [Appellant] was found to be a
sexually violent predator. Timely Post-Sentence Motions were
filed and were denied on September 26, 2016. This appeal
followed.
1 18 Pa.C.S.A. §3121(a)
2 18 Pa.C.S.A. §3123(a)(7)
3 18 Pa.C.S.A. §6318(a)(1)
4 18 Pa.C.S.A. §3125(a)(1)
5 18 Pa.C.S.A. §3124.1
6 18 Pa.C.S.A. §3122.1(a)(2)
7 18 Pa.C.S.A. §4304(a)(1)
8 18 Pa.C.S.A. §6301(a)(1)(ii)
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1 Appellant waived his right to have an SVP determination hearing prior to
the time of sentencing. N.T., 6/28/16, at 2.
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9 18 Pa.C.S.A. §3126(a)(8)
Trial Court Opinion, 5/5/17, at 1-2.2
Appellant presents the following issues for our review:
I. DID THE TRIAL COURT ABUSE ITS DISCRETION AND COMMIT
REVERSIBLE ERROR BY PERMITTING THE COMMONWEALTH TO
PRESENT AN EXPERT OPINION, WHICH WAS BASED UPON
SPECIALIZED KNOWLEDGE BEYOND THAT POSSESSED BY THE
AVERAGE LAYPERSON, THROUGH A WITNESS WHO HAD NOT
BEEN QUALIFIED AS AN EXPERT?
II. DID THE TRIAL COURT ABUSE ITS SENTENCING DISCRETION
AND IMPOSE A MANIFESTLY EXCESSIVE AND UNREASONABLE
SENTENCE BY (1) FAILING TO CONSIDER ALL STATUORILY
REQUIRED SENTENCING FACTORS, INSTEAD FOCUSING
EXCLUSIVELY ON THE IMPACT ON THE COMPLAINANT; (2)
FAILING TO STATE REASONS FOR ITS SIGNFICANT DEPARTURE
FROM THE RECOMMENDED GUIDELINES; AND (3) RELYING ON
IMPERMISSIBLE FACTORS?
Appellant’s Brief at 6. In addition, in his supplemental brief, Appellant
presents the following issue:
III. MUST THE TRIAL COURT’S ORDER DESIGNATING
[APPELLANT] AS A[N SVP] BE VACATED WHERE THE
FRAMEWORK WITHIN WHICH THAT DESIGNATION WAS MADE
WAS DEEMED UNCONSTITUTIONAL IN COMMONWEALTH V.
BUTLER?
Appellant’s Supplemental Brief at 5.
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2 After Appellant filed his appellate brief and before the Commonwealth filed
its appellate brief, this Court issued our decision in Commonwealth v.
Butler, 173 A.3d 1212 (Pa. Super. 2017). Appellant immediately filed a
“Petition to Supplement Brief.” On November 8, 2017, this Court entered an
order granting Appellant’s request to supplement his brief and reset the
Commonwealth’s briefing schedule.
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Appellant first argues that the trial court abused its discretion in
permitting the Commonwealth to present testimony in the form of an expert
opinion from Allegheny County Police Detective Scott Holzwarth, who had
not been qualified as an expert. Appellant’s Brief at 15-28. Appellant
alleges the Commonwealth offered, and the trial court admitted, this
testimony under the guise that Holzwarth was a lay witness providing lay
testimony, which relied upon specialized knowledge beyond that possessed
by the average layperson. Id. at 15. Specifically, Appellant contends that
Detective “Holzwarth testified for the Commonwealth as an expert in child
sexual assault cases in disguise and was prompted to offer an opinion, based
on his training and experience, concerning [Victim’s] specific type of victim
response and behavior.” Id. at 18-19 (emphasis in original). Appellant
concludes that the trial court erred by admitting an expert opinion from a lay
witness resulting in prejudice to Appellant and requiring a new trial. Id. at
28.
Questions concerning the admissibility of evidence lie within the sound
discretion of the trial court, and we will not reverse the court’s decision on
such a question absent a clear abuse of discretion. Commonwealth v.
Maloney, 876 A.2d 1002, 1006 (Pa. Super. 2005). An abuse of discretion is
not merely an error of judgment, but is rather the overriding or
misapplication of the law, or the exercise of judgment that is manifestly
unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown
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by the evidence or the record. Commonwealth v. Cameron, 780 A.2d
688, 692 (Pa. Super. 2001).
Pa.R.E. 701 addresses the admission of opinion testimony by lay
witnesses and provides:
If a witness is not testifying as an expert, testimony in the
form of an opinion is limited to one that is:
(a) rationally based on the witness’s
perception;
(b) helpful to clearly understanding the
witness’s testimony or to determining a fact in issue;
and
(c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.
Pa.R.E. 701.
With regard to the admission of expert witness testimony, Pa.R.E. 702
provides as follows:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge is beyond that possessed by
the average layperson;
(b) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue; and
(c) the expert’s methodology is generally
accepted in the relevant field.
Pa.R.E. 702.
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In addressing Appellant’s issue, the trial court offered the following
analysis:
[D]efense counsel’s cross-examination of [Victim] began with
impeachments using her PFA application and her preliminary
hearing testimony. He attempted to exploit differences in the
details, particularly concerning which type of intercourse
happened in which room and the last date of each type of
intercourse. Then, during the direct examination of Detective
Scott Holzwarth, the following occurred:
Q. ([Assistant District Attorney]): As a detective in
the General Investigations Unit, do you handle all
sorts of crimes or do you have a certain type of
crime that you do more of?
A. (Det. Holzwarth): We do handle many different
types of crimes, but I do mostly crimes against
people, which includes sex assaults and child abuse.
Q. And if you could estimate, during the course of
your career, approximately how many child sexual
assault cases have you investigated?
A. Hundreds. I would have to do the math, but at
least hundreds.
Q. What else did she tell you regarding the assaults?
A. That time?
Q. In general.
A. In general? That it included oral sex and vaginal
sex. She told us that it continued until I think the
previous time - the last time for the vaginal sex was
perhaps a year before she talked to us and that the
last oral sex was about two weeks before she talked
to us.
Q. Did she indicate whether or not this had
happened multiple times to her?
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A. Could you repeat that.
Q. Did she indicate whether or not this had been
going on multiple times?
A. Yes.
Q. And in your training and experience, Detective, do
kids often have trouble remembering each and every
time when this is an ongoing incident?
A. Yes, they do. As a matter of fact, in our criminal
complaints we normally put a little blurb in there that
explains that the victims -
[DEFENSE COUNSEL]: Your Honor, I would object to
this as expert testimony. This is opinion.
THE COURT: I’m going to overrule.
Q. Please continue, Detective.
A. - that explains [t]hat victims sometimes have
trouble remembering exact dates when events have
happened.
Q. And have you also found in your training and
experience with your specific cases whether or not
victims will have trouble recalling in each incident
that they’re assaulted every single detail of the
assault?
A. Yes.
Q. And do they oftentimes get the times that those
things happened confused with other times that they
discuss with you?
A. Yes. Very often.
(T.T. pp. 97-98, 99-101).
Throughout the trial, beginning with the opening
statement, defense counsel painted [Victim] as a liar, with
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emphasis on her inability to remember exact dates and some
confusion between which types of intercourse happened in which
rooms of the house. Given this defense, the Commonwealth was
entitled to question Detective Holzw[a]rth regarding his
experience with child victims. It is further worth noting that
defense counsel concluded his cross-examination of Detective
Holzwarth by returning to this point, and, with effective
questioning, was able to get the Detective to concede that an
alternative reason the allegations made by child victims lacked
detail was that they never happened. Thus, any perceived
damage to [Appellant] by the testimony was more than
remedied on counsel’s cross-examination. Under the
circumstances of this particular case, the Commonwealth was
entitled to question Detective Holzwarth regarding his experience
with child victims and this [c]ourt did not err in allowing the
testimony. This claim is meritless.
Trial Court Opinion, 5/5/17, at 8-10.
Upon review of the record, we agree with the trial court that Detective
Holzwarth’s testimony was not outside the scope of Pa.R.E. 701. We discern
no abuse of discretion in the trial court’s determinations that (1) Detective
Holzwarth, who testified as to matters within his personal knowledge and
experience, did not need to be qualified as an expert in order to discuss
Victim’s inability to recall specific dates of the sexual incidents, and (2) he
gave permissible lay opinion testimony regarding his observations with
similar victims of sexual abuse. Accordingly, we conclude that Detective
Holzwarth’s testimony was rationally based on his experience, was helpful to
the trier of fact, and was not based on scientific, technical, or other
specialized knowledge. Therefore, the trial court did not err in permitting
Detective Holzwarth’s testimony.
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Appellant’s next issue challenges the discretionary aspects of his
sentence. It is well settled that there is no absolute right to appeal the
discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d
800, 805 (Pa. Super. 2006). Rather, in such a case, the appeal should be
considered a petition for allowance of appeal. Commonwealth v. W.H.M.,
932 A.2d 155, 163 (Pa. Super. 2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal,
see Pa.R.A.P. 902 and 903; (2) whether the issue
was properly preserved at sentencing or in a motion
to reconsider and modify sentence, see Pa.R.Crim.P.
[720]; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from
is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)).
Whether a particular issue constitutes a substantial question about the
appropriateness of sentence is a question to be evaluated on a case-by-case
basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001).
As to what constitutes a substantial question, this Court does not accept
bald assertions of sentencing errors. Commonwealth v. Malovich, 903
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A.2d 1247, 1252 (Pa. Super. 2006). An appellant must articulate the
reasons the sentencing court’s actions violated the sentencing code. Id.Herein, the first three requirements of the four-part test are met.
Appellant brought an appropriate appeal, raised the challenge in a post-
sentence motion, and he included in his appellate brief the necessary concise
statement of the reasons relied upon for allowance of appeal pursuant to
Pa.R.A.P. 2119(f). Therefore, we next determine whether Appellant raises a
substantial question requiring us to review the discretionary aspects of the
sentence imposed by the trial court.
Appellant argues that the trial court imposed an excessive sentence
that was based solely on the nature and facts of the case and seriousness of
the crime and did not consider Appellant’s need for rehabilitation.
Appellant’s Brief at 29-39. Appellant also alleges that the trial court failed to
put adequate reasons on the record to justify its sentencing decision. Id. at
32. Considering this claim to be an allegation that the sentencing court
failed to consider factors set forth under 42 Pa.C.S. § 9721(b), 3 we conclude
that, in this instance, Appellant has raised a substantial question. See
Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006)
(concluding that the appellant raised a substantial question where it was
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3 We note that the factors to be considered under 42 Pa.C.S. § 9721(b)
include the protection of the public, gravity of offense in relation to impact
on victim and community, and rehabilitative needs of the defendant.
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alleged that the trial court failed to properly consider the factors set forth in
42 Pa.C.S. § 9721(b)). Because Appellant has stated a substantial question,
we will address this claim on appeal.
Appellant asserts that, in fashioning his sentence, the sentencing court
failed to consider properly the required sentencing factors, while focusing on
the gravity of the offense and its impact upon Victim. Appellant’s Brief at
43-56. However, we discern no abuse of discretion on the part of the
sentencing court.
It is undisputed that 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. Fullin, 892 A.2d at 847. In
this context, an abuse of discretion is not shown merely by an error in
judgment. Id. Rather, the appellant must establish by reference to the
record that the sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias, or ill will, or arrived at a
manifestly unreasonable decision. Id.Indeed, the sentencing judge has broad discretion in determining the
proper penalty, and this Court accords the sentencing court great deference,
as it is the sentencing court that is in the best position to view the
defendant’s character, displays of remorse, defiance, or indifference and the
overall effect and nature of the crime. Commonwealth v. Walls, 926 A.2d
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957, 961 (Pa. 2007) (quotations and citations omitted). 4 As previously
stated, when imposing a sentence, the sentencing court must consider “the
protection of the public, the gravity of the offense as it relates to the impact
on the life of the victim and on the community, and the rehabilitative needs
of the defendant.” 42 Pa.C.S. § 9721(b). As we have stated, “a court is
required to consider the particular circumstances of the offense and the
character of the defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10
(Pa. Super. 2002). “In particular, the court should refer to the defendant’s
prior criminal record, his age, personal characteristics and his potential for
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4 The Walls Court instructed the following:
In making this “unreasonableness” inquiry, the General
Assembly has set forth four factors that an appellate court is to
consider:
(d) Review of the record.—In reviewing the record the appellate
court shall have regard for:
(1) The nature of the circumstances of the offense
and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to
observe the defendant, including any pre-sentence
investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S.A. § 9781(d).
Id. at 963.
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rehabilitation.” Id. However, “[o]ur Supreme Court has determined that
where the trial court is informed by a pre-sentence report, it is presumed
that the court is aware of all appropriate sentencing factors and
considerations, and that where the court has been so informed, its discretion
should not be disturbed.” Commonwealth v. Ventura, 975 A.2d 1128,
1133 (Pa. Super. 2009) (citing Commonwealth v. Devers, 546 A.2d 12(Pa. 1988)).
Here, in providing its reasoning for imposing the specific sentence
upon Appellant, the trial court offered the following discussion in its written
opinion that also quotes its comments made at the time of sentencing:
At the sentencing hearing, this [c]ourt noted that it had read
and considered a Pre-Sentence Investigation report.
(Sentencing Hearing Transcript, p. 9). “Where pre-sentence
reports exist, [the appellate court] shall continue to presume
that the sentencing judge was aware of relevant information
regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors. A pre-
sentence report constitutes the record and speaks for itself.”
Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009).
This Court then placed its reasons for imposing sentence on the
record:
THE COURT: Okay. [Appellant], I have ordered, read
and considered a presentence report. The guidelines
have been submitted indicating that you are a twelve
and a zero. At least at each of the first three counts.
I agree with [the Assistant District Attorney] that
you committed a number of violent sexual activities
against [Victim] who was your stepdaughter. She
had the right to have you love her and protect her,
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not to rape her and perform various kind of sexual
acts. I am concerned that these acts occurred from
the time she was 11 until the time she was 17.[5]
You violated a position of trust and you just heard
the impact that you have had both on [Victim] and
her mother.
(S.H.T. p. 9-10).
As the record reflects, this [c]ourt appropriately read and
considered the pre-sentence investigation report, considered the
factors and severity of the present offense, evaluated
[Appellant’s] potential for rehabilitation and imposed a sentence
which took all of these factors into consideration. Neither is
[Appellant’s] argument that this [c]ourt erred in imposing
consecutive sentences persuasive. It is by now well-established
that the decision to run sentences consecutively is within the
discretion of the trial court. “Long standing precedent of [the
Superior] Court recognizes that 42 Pa.C.S.A. §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.” [Commonwealth v.
Marts, 889 A.2d 608, 612 (Pa. Super. 2005).] Given the nature
and circumstances of this crime, this [c]ourt was well within its
discretion in running the sentences consecutively.
Ultimately, the record reflects great deliberation and
consideration in the formulation of the sentence. [Appellant’s]
unhappiness with the length of his sentence does not mean it is
“excessive” or constituted an abuse of discretion. Given the
facts of this case, the sentence imposed was appropriate, not
excessive and well within this [c]ourt’s discretion. This claim
must fail.
Trial Court Opinion, 5/5/17, at 10-12.
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5 We observe that the trial court misstated Victim’s age at the time that the
sexual conduct began. The trial court commented that Victim was eleven
years old, when Victim was actually thirteen years old.
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Likewise, our review of the record reflects that, at the time of
Appellant’s sentencing, the trial court had received and reviewed a
presentence report. N.T., 6/28/16, at 2, 9. In addition, the trial court heard
the following argument from defense counsel reminding the court of
Appellant’s prior history and requesting a minimum sentence within the
standard range of the Sentencing Guidelines:
Judge, just very briefly. You have reviewed the pre-
sentence report for purposes of today’s hearing. He is a prior
record score of zero. He has no history of prior convictions that
are sexual in nature. As it states in the record he was removed
from his parents at a young age due to their drug abuse and was
raised in placement. And just from my conversations with him
obviously he is very sorry for the pain that he caused this family
and in this case we would just ask that the court consider a
standard range sentence in this case, which would be anywhere
from five to ten or six to twelve years on the lead charge.
Id. at 2-3. Also, the trial court heard Appellant offer an apology to his
family. Id. at 3. Moreover, prior to sentencing, the Assistant District
Attorney read into the record a statement prepared by Victim’s mother
concerning the impact that the crimes had upon Victim and the entire family.
N.T., 6/28/16, at 3-5. Further, Victim read into the record her own prepared
statement detailing the ongoing trauma and depression that she suffered
from the incidents, which led her to contemplate suicide. Id. at 5-8.
Furthermore, prior to imposing sentence, the trial court specifically indicated
that it had ordered, read and considered Appellant’s presentence report. Id.
at 9. Because the trial court had been fully informed and relied upon the
presentence report, we conclude that the trial court did not abuse its
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discretion in fashioning Appellant’s sentence. Accordingly, Appellant’s claim
that the trial court failed to consider the appropriate sentencing factors lacks
merit.
Appellant last argues that, pursuant to our decision in Butler,6 the
trial court’s determination that he is an SVP pursuant to the Sexual Offender
Registration and Notification Act (“SORNA”)7 is illegal.8 Appellant’s
Supplemental Brief at 10-14. Appellant requests that this Court vacate the
order designating him to be an SVP. Id. at 14.
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6 On January 3, 2018, this Court denied reargument in Butler. However, on
February 1, 2018, the Commonwealth filed a petition for allowance of appeal
to the Pennsylvania Supreme Court. That petition, at 47 WAL 2018, is still
pending as of this writing.
7 SORNA, 42 Pa.C.S. §§ 9799.10-9799.41, replaced Megan’s Law and
became the statute governing the registration and supervision of sex
offenders. SORNA provides that a defendant found guilty of certain
enumerated offenses is subject to one of three different “tiers” of
registration periods. See 42 Pa.C.S. § 9799.14 (setting forth graduated tier
system). SORNA also subjects a period of lifetime registration upon those
that the trial court, at the time of sentencing, finds to be SVPs by clear and
convincing evidence. 42 Pa.C.S. § 9799.24(e)(3). SORNA was recently
amended by H.B. 631, 202 Gen. Assem., Reg. Sess. (Pa. 2018), Act 10 of
2018.
8 Appellant has acknowledged that he did not raise his Butler claim before
the trial court. Appellant’s Supplemental Brief at 14-15 n.10. Although
Appellant raises this issue for the first time on appeal, we may review it.
See Butler, 173 A.3d at 1214 (holding that, while issues not raised before
the trial court are generally waived for appellate purposes, a challenge to the
legality of a sentence need not be preserved in the trial court in order to be
reviewable).
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During the pendency of this appeal, the Pennsylvania Supreme Court
issued its decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017),
cert. denied, 138 S.Ct. 925 (2018). In Muniz, the Court held that the
registration requirements set forth under SORNA constitute criminal
punishment as opposed to a civil penalty, and therefore, their retroactive
application violates the Ex Post Facto clause of the United States
Constitution. Id., 164 A.3d at 1218.
Subsequently, this Court held that applying SORNA’s aggravated
registration periods for those found to be SVPs is unconstitutional. Butler,
173 A.3d at 1217. In Butler, we concluded that, because the Court in
Muniz held SORNA’s registration requirements are punitive, and an SVP
designation increases the registration period, trial courts cannot apply
SORNA’s increased registration requirement for SVPs because SORNA does
not require a fact-finder to determine, beyond a reasonable doubt, that the
defendant is an SVP. Id. at 1217-1218 (citing Alleyne v. United States,
570 U.S. 99 (2013)).
In Butler, we instructed trial courts to apply only the applicable tier-
based registration period, because those periods apply based on the
conviction itself and are not triggered by any additional fact not found by the
fact-finder. Butler, 173 A.3d at 1218. We ultimately reversed the order
finding the appellant to be an SVP and remanded to the trial court for the
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purpose of issuing appropriate notice9 of the appellant’s tier-based
registration period. Id. at 1218.
To its credit, the Commonwealth concedes that Appellant’s issue has
merit. Specifically, the Commonwealth does not oppose vacating Appellant’s
SVP status and remanding the case for the sole purpose of providing
Appellant with new notice of his sex offender registration and reporting
requirements under 42 Pa.C.S. § 9799.23. Commonwealth’s Brief at 26.
Here, the trial court conducted an SVP hearing and determined
Appellant to be an SVP by clear and convincing evidence, rather than beyond
a reasonable doubt. Under Muniz and Butler, we conclude that the trial
court’s September 22, 2016 order deeming Appellant to be an SVP is
unconstitutional and constitutes an illegal sentence. Therefore, we vacate
Appellant’s SVP status and, in accord with Butler, remand this matter to the
trial court to issue appropriate notice to Appellant of his registration
obligations pursuant to 42 Pa.C.S. § 9799.23.
SVP Order vacated. Judgment of sentence affirmed in all other
respects. Case remanded with instructions. Jurisdiction relinquished.
P.J.E. Bender joins this Memorandum.
Judge Strassburger files a Dissenting Memorandum.
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9 See 42 Pa.C.S. § 9799.23 (providing for court notification and classification
requirements).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/27/2018
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