Com. v. Lacosta-Franco, X. ( 2022 )

J-A14030-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
XAVIER LACOSTA-FRANCO
Appellant No. 963 MDA 2021
Appeal from the Judgment of Sentence July 12, 2021
In the Court of Common Pleas of Berks County
Criminal Division at No: CP-06-CR-0002791-2014
BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED: AUGUST 16, 2022
Appellant, Xavier LaCosta-Franco, appeals from his aggregate
judgment of sentence of 29½ to 109 years’ imprisonment for multiple sexual
offenses against three minor victims and to his classification as a sexually
violent predator (“SVP”). We affirm.
In 2014, Appellant was charged with three counts of rape of a child,
three counts of involuntary deviate sexual intercourse (“IDSI”) and other
offenses. The allegations concerned Appellant’s sexual abuse of three minor
females aged eight, thirteen and fifteen between 2010 and 2012. The
fifteen-year-old female was the daughter of Appellant’s paramour and lived
with Appellant. The other two minor females were friends of the fifteen-
year-old.
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* Former Justice specially assigned to the Superior Court.
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In August 2016, a jury found Appellant guilty of multiple counts of
rape, IDSI, statutory sexual assault, aggravated indecent assault and
indecent assault. On March 2, 2017, the trial court determined that
Appellant was a sexually violent predator (“SVP”) and imposed a lengthy
sentence of imprisonment. Appellant filed a timely appeal, and on June 4,
2018, this Court reversed and remanded for resentencing at the trial court’s
request. The purpose was for resentencing in light of this Court’s decision in
Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017), that held the
SVP statute, 42 Pa.C.S.A. § 9799.24, was unconstitutional. See id.
(imposition of SVP status constitutes criminal punishment; consequently,
SVP statute unconstitutional because it permits Commonwealth to prove
defendant’s eligibility for SVP treatment with clear and convincing evidence
instead of evidence beyond reasonable doubt).1 The panel did not reach the
merits of any of the issues that Appellant raised in that appeal.
On August 25, 2020, the trial court resentenced Appellant to the same
term of imprisonment and again found him to be an SVP. The court,
however, did not enter a new sentencing order on the docket. Appellant
filed a post-sentence motion, which the trial court denied on December 23,
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1 On March 26, 2020, our Supreme Court reversed our decision in Butler by
holding that the lifetime registration, notification, and counseling
requirements applicable to SVP’s do not constitute criminal punishment and
therefore were not unconstitutional. Commonwealth v. Butler, 226 A.3d
972, 976 (Pa. 2020).
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2020. On January 22, 2021, Appellant filed an appeal to this Court. On May
21, 2021, this Court dismissed the appeal sua sponte due to the lack of a
sentencing order and remanded for resentencing in accordance with our
June 4, 2018 order.
On July 12, 2021, the court readvised Appellant that he was an SVP,
resentenced him to the same aggregate term, and entered judgments of
sentence on each count of conviction. Appellant filed timely post-sentence
motions contending that there was insufficient evidence from which to
declare him an SVP and that the SVP statute was unconstitutionally vague
and overbroad. On July 16, 2021, the court entered an order denying
Appellant’s post-sentence motions. Appellant filed a timely notice of appeal,
and both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant raises the following issues in this appeal:
1. Whether the trial court abused its discretion in overruling
[Appellant]’s objection to the prosecutor’s closing argument
during which the prosecutor effectively stated that Defense
Counsel ignored a line of questioning because Defense Counsel
knew [Appellant] was guilty?
2. The granting of Commonwealth’s pretrial motion in limine
regarding 404(B) and tender years statements were error.
3. Whether the evidence was insufficient to support the trial
court’s finding that [Appellant] was a “sexually violent predator”
because the victims were neither “stranger[s]” nor “person[s]
with whom a relationship had been instituted, established,
maintained or promoted, in whole or in part, in order to facilitate
or support victimization?”
4. Whether 42 Pa.C.S.A. § 9799 is unconstitutionally vague in
that it, together with the relevant law, simultaneously call for an
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inquiry into the “extent to which the offender is likely to
reoffend” due to a mental abnormality while the consideration of
the factors to be used in this inquiry “are not to be used for risk
assessment?”
5. Whether 42 Pa. C.S.A. § 9799 is unconstitutionally overbroad
in that it effectively classifies all offenders as sexually violent
predators unless 1) there is no victim or 2) [the] defendant has
no mental abnormality?
6. Whether [Appellant]’s classification as a sexually violent
predator with the attendant lifetime reporting requirements
makes [Appellant]’s sentence illegal pursuant to the recently
decided Pennsylvania Supreme Court case, Commonwealth v.
Muniz, [164 A.3d 1189 (Pa. 2017)], which indicates that the
provisions of SORNA are punitive in effect? As reporting is
punitive, it is in reality part of a sentence, but lifetime reporting
potentially extends the punishment to a lifetime penalty beyond
the relevant statutory maximums.
Appellant’s Brief at 11-12.
In his first argument, Appellant asserts that that the trial court abused
its discretion by overruling defense counsel’s objection to the prosecutor’s
closing argument. This claim does not warrant relief.
During cross-examination, defense counsel sought to discredit the
second victim’s testimony by raising alleged inconsistencies between her
testimony at the preliminary hearing and at trial. The second victim testified
as follows on cross-examination:
[DEFENSE COUNSEL]: Let me ask you this, it has been a while
since the preliminary hearing in this case as well. I mean we are
talking about events from 2011, 2012. The preliminary hearing
this case was held in June of 2014, which is more than two years
ago, was your memory better in June of 2014 or is it more
accurate that you are in court at this time, if you have an
opinion?
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VICTIM #2: Not sure what you are asking me.
Q. I’m suggesting the version of events you are telling us now is
in respects different than what you said over two years ago is
because your memory is faded and you are struggling to
remember the facts or not?
A. Lately I’ve been like scared about this and stuff and I’m like
been trying to forget about it but everything that I have said the
first time I’m saying now.
Q. You don’t remember testifying differently at the preliminary
hearing?
A. If there were different questions asked, yes, different ways.
Q. Do you remember, for example, describing the color of the
pajamas that he was wearing at the time this occurred?
A. Right.
Q. You remember testifying to that?
A. Yes.
Q. But you don’t remember testifying previously that there was
one incident of anal intercourse and one not of anal intercourse?
A. It was one that did touch and one that didn’t.
N.T., 8/22/17, at 124-26. In closing, defense counsel stated:
[Victim #2], herself, comes into court today, and if I understood
her testimony correctly, for the first time describes two anal
rapes on two separate occasions. In my recollection . . . that is
not what the District Attorney said was expected in her opening
statement and is not what is considered to be the theory of the
case in the affidavit of probable cause.
N.T., 8/24/17, at 273. The prosecutor responded:
And, ladies and gentlemen, defense counsel was asking [Victim
#2] a lot of questions and wasn’t really referring to the
transcript, do you remember testifying to this and not following
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up or showing her the transcript but the one thing that really
stuck out in my mind was that he asked her, do you remember
testifying what color pajamas [Appellant] was wearing and her
response was he was wearing red pajamas and then Mr.
Waltman followed up and said, no, no, I’m not asking you that.
I’m asking you if you remember testifying to that. And I
honestly don’t remember what her response was, but what I can
tell you is that Mr. Waltman did not follow up.
Id. at 295-96. Defense counsel objected, “Your honor, the commentary of
what I did or didn’t do is irrelevant. I object.” Id. at 296. The court
overruled the objection without further argument or discussion. Id.
Appellant argues that the prosecutor engaged in misconduct by
“suggesting that defense counsel’s strategy in cross-examining the witness
indicated he knew his client was guilty.” Appellant’s Brief at 19.
“Our standard of review for a claim of prosecutorial misconduct is
limited to whether the trial court abused its discretion.” Commonwealth v.
Rolan, 964 A.2d 398, 410 (Pa. Super. 2008). “It is the duty of the trial
judge to rule upon the [prosecutor’s] comments; this Court is limited in its
review to whether the trial court abused its discretion.” Commonwealth v.
Brawner, 553 A.2d 458, 463 (Pa. Super. 1989). “An abuse of discretion
may not be found merely because an appellate court might have reached a
different conclusion, but requires a result of manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such a lack of support so as to be
clearly erroneous.” Commonwealth v. Jones, 240 A.3d 881, 889 (Pa.
2020).
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In a criminal trial, “the prosecutor must be free to argue that the facts
of record establish every element of the crime charged and must be free to
respond fairly to the arguments of the defense.” Commonwealth v.
Crumbley, 270 A.3d 1171, 1182 (Pa. Super. 2022). The bounds of
“oratorical flair” afford the prosecution significant leeway in this regard. Id.A prosecutor must have reasonable latitude in presenting his case to the jury
and must be free to present his arguments with logical force and vigor.
Rolan, 964 A.2d at 410. “Reversible error occurs only when the
unavoidable effect of the . . . comments would prejudice the jurors and form
in their minds a fixed bias and hostility toward the defendant such that the
jurors could not weigh the evidence and render a true verdict.” Crumbley,
270 A.3d at 1182-83. “The touchstone is the fairness of the trial, not the
culpability of the prosecutor.” Id.
Appellant claims during closing argument the prosecutor implied that
defense counsel abandoned a line of questioning on cross-examination
because counsel believed that the witness was credible and that Appellant
was guilty. The record demonstrates, however, that the prosecutor never
commented on defense counsel’s beliefs. The prosecutor merely contended
that defense counsel failed to impeach the witness’s credibility. More
specifically, the prosecutor argued that defense counsel insinuated during
cross-examination that the witness’s trial testimony was different from her
preliminary hearing testimony, but counsel failed to provide specific
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examples of inconsistent testimony. This was a fair response to defense
counsel’s questions during cross-examination that suggested the witness
changed her testimony. N.T., 8/22/17, at 124-26. We see nothing improper
in this argument, let alone anything that “would prejudice the jurors and
form in their minds a fixed bias and hostility toward the defendant such that
the jurors could not weigh the evidence and render a true verdict.”
Crumbley, 270 A.3d at 1182-83.
In his next argument, Appellant contends that the trial court abused
its discretion by allowing the Commonwealth to introduce evidence of
uncharged misconduct during trial. Appellant has waived this argument.
The Rules of Appellate Procedure require that an appellant who refers
to evidence in his brief must include “a reference to the place in the record
where the matter referred to appears.” Pa.R.A.P. 2119(c). An appellant’s
failure to properly develop an argument with citations to the relevant
portions of the record will result in the waiver of his appellate claims.
Commonwealth v. Brown, 200 A.3d 986, 991 (Pa. Super. 2018) (“[i]n
order for this Court to determine whether [the appellant] was prejudiced by
the trial court’s adverse ruling on his motion in limine, he must, at a
minimum, direct us to the specific places in the record where allegedly
prejudicial testimony was elicited”); see also Commonwealth v.
Mulholland, 702 A.2d 1027, 1034 n.5 (Pa. 1997) (“[i]n a record containing
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thousands of pages, this court will not search every page to substantiate a
party's incomplete argument”).
While Appellant complains in his brief that the trial court improperly
permitted Rule 404(b) evidence of uncharged misconduct, he fails to identify
the evidence he believes was inadmissible or the place(s) in this record
where this evidence was introduced. Due to these omissions, we have no
way to determine whether the evidence was inadmissible or prejudicial to
Appellant. Consequently, this argument is waived. Pa.R.A.P. 2119(c);
Brown, Mulholland, supra.
Next, Appellant argues that the evidence was insufficient to justify the
court’s determination that he is an SVP because his offenses were not
predatory under the SVP statute. We disagree.
SORNA, the Sex Offender Registration and Notification Law,2 provides
rigorous standards for determining whether the defendant is an SVP. First,
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2 42 Pa.C.S.A. §§ 9799.51-9799.75. SORNA’s purpose is to “substantially
comply with [federal law] and to further protect the safety and general
welfare of the citizens of this Commonwealth by providing for increased
regulation of sexual offenders, specifically as that regulation relates to
registration of sexual offenders and community notification about sexual
offenders.” 42 Pa.C.S.A. § 9799.11.
SORNA is the General Assembly’s fourth enactment of the law commonly
referred to as Megan’s Law. Megan’s Law I was enacted in 1995 but was
held unconstitutional by our Supreme Court in Commonwealth v.
Williams, 733 A.2d 593 (Pa. 1999). In response, the General Assembly
enacted Megan’s Law II in 2000. In 2003, the Supreme Court held that
some portions of Megan’s Law II were unconstitutional, Commonwealth v.
(Footnote Continued Next Page)
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the defendant must be convicted of a “sexually violent offense,” 42 Pa.C.S.A.
§ 9799.55, which Subchapter I of SORNA defines to include various serious
felonies (e.g., rape, IDSI, kidnapping a minor and other forms of sexual
assault). See 42 Pa.C.S.A. §§ 9799.53 and 9799.55. Next, the defendant
must have a “mental abnormality or personality disorder that makes the
person likely to engage in predatory sexually violent offenses” or “has ever
been determined by a court to have a mental abnormality or personality
disorder that makes the person likely to engage in predatory sexually violent
offenses under a former sexual offender registration law of this
Commonwealth.” 42 Pa.C.S.A. § 9799.53. To determine whether the
(Footnote Continued) _______________________
Gomer Williams, 832 A.2d 962 (Pa. 2003), and the General Assembly
responded by enacting Megan’s Law III. In 2006, 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. In 2011, the General Assembly passed
SORNA. SORNA went into effect on December 20, 2012, while Megan’s Law
II expired on the same date. In 2013, our Supreme Court struck down
Megan’s Law III for violating the single subject rule of Article III, Section 3
of the Pennsylvania Constitution. Commonwealth v. Neiman, 84 A.3d
603, 616 (Pa. 2013). By that time, however, SORNA had already replaced
Megan’s Law III.
SORNA has been amended several times, most importantly in Acts 10 and
29 of 2018. Through Act 10, as amended in Act 29, the General Assembly
split SORNA I’s former Subchapter H into a revised Subchapter H and
Subchapter I. Subchapter I applies to sexual offenders who committed an
offense on or after April 22, 1996 but before December 20, 2012. See 42
Pa.C.S.A. §§ 9799.51—9799.75. Revised Subchapter H applies to offenders
who committed an offense on or after December 20, 2012. See 42
Pa.C.S.A. §§ 9799.10—9799.42. Here, Appellant’s offenses took place
before December 20, 2012, so we will apply Subchapter I to this case.
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defendant meets these standards, the SOAB must evaluate fifteen criteria
relating to the facts of the offense, the defendant’s prior offense history, his
individual characteristics, and any other factors reasonably related to the
risk of reoffense, 42 Pa.C.S.A. § 9799.58(b), and present a written report of
its assessment to the district attorney. 42 Pa.C.S.A. § 9799.58(d). The
SOAB must also provide a written summary of the defendant’s conduct that
specifies, inter alia, (1) whether the victim was a minor, (2) the manner of
weapon or physical force used or threatened, (3) if the offense involved
unauthorized entry into a room or vehicle occupied by the victim, and (4) if
the offense was part of a course or pattern of conduct involving multiple
incidents or victims. 42 Pa.C.S.A. § 9799.58(d.1). Upon praecipe by the
district attorney, the court must hold a hearing in which it determines
whether the Commonwealth has proved by clear and convincing evidence
that the defendant is an SVP. 42 Pa.C.S.A. § 9799.58(e)(3).
In order to affirm an SVP designation,
we, as a reviewing court, must be able to conclude that the fact-
finder found clear and convincing evidence that the individual is
a [SVP]. As with any sufficiency of the evidence claim, we view
all evidence and reasonable inferences therefrom in the light
most favorable to the Commonwealth. We will reverse a trial
court’s determination of SVP status only if the Commonwealth
has not presented clear and convincing evidence that each
element of the statute has been satisfied.
Commonwealth v. Hollingshead, 111 A.3d 186, 189 (Pa. Super. 2015).
In this case, the only element challenged by Appellant is “predatory”
behavior, so we limit our sufficiency analysis to this element. SORNA
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defines “predatory” as “[a]n act directed at a stranger or at a person with
whom a relationship has been initiated, established, maintained or
promoted, in whole or in part, in order to facilitate or support victimization.”
42 Pa.C.S.A. § 9799.53. The evidence presented by Dr. Veronica Valliere,
the Commonwealth’s expert on the classification of SVP’s, demonstrates that
Appellant not only was likely to engage in predatory conduct but actually did
so. The court admitted Dr. Valliere’s written report into evidence during
Appellant’s SVP hearing. Dr. Valliere testified that she extensively reviewed
the record of this case and interviewed Appellant for 45 minutes. N.T.,
2/21/17, at 6-7 (SVP hearing). Appellant was convicted of a multitude of
sexually violent offenses against three victims, including rape, statutory
sexual assault, IDSI, indecent assault and aggravated indecent assault. Dr.
Valliere’s report observed that Appellant resided with his paramour and
paramour’s fifteen-year-old daughter, the first victim. Report at 3.
Appellant sexually assaulted the fifteen-year-old twice and threatened to kill
her and her mother (his paramour) if she talked about it. Id. Appellant also
sexually assaulted a thirteen-year-old female, the second victim, who had
come over to visit Appellant’s paramour’s daughter. Id. at 2-3. Appellant
threatened to kill the thirteen-year-old and her family if she told anyone, a
threat that prompted the girl’s family to move to Florida. Id. Finally,
Appellant grabbed the breast of an eight-year-old girl, the third victim, who
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came over to Appellant’s paramour’s house. Id. at 3. Only Appellant and
the girl were in the house at the time. Id. Dr. Valliere concluded:
Appellant was acquainted with the victims through different
relationships, either neighbor, child of a paramour, or friend of a
child. He engaged in an act with one child, grabbing her breast
suddenly, and raped two others, then threatening them to
ensure silence. All his behavior promoted a secret, threatening
relationship with the children to facilitate the victimization. His
behavior meets the statutory definition of predatory behavior.
Id. at 10.
Based on the evidence presented during Appellant’s SVP hearing,
including Dr. Valliere’s testimony and expert report, we conclude that the
Commonwealth presented sufficient evidence to fulfill the element of
predatory behavior. Appellant’s challenge to the sufficiency of the evidence
fails.
Next, Appellant contends that the trial court erred by refusing to hold
that SORNA’s procedures for assessing whether the defendant is an SVP are
unconstitutionally vague. We disagree based on our analysis in
Commonwealth v. Kopicz, 840 A.2d 342 (Pa. Super. 2003), which
rejected a similar void-for-vagueness challenge to Megan’s Law II.
There is a strong presumption in the law that legislative enactments
are constitutional, and a heavy burden of persuasion rests upon one who
challenges the constitutionality of a statute. A statute will only be found
unconstitutional if it clearly, palpably and plainly violates the Constitution.
Commonwealth v. Williams, 733 A.2d 593, 603 (Pa. 1999). All doubts
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are to be resolved in favor of sustaining the constitutionality of the
legislation. Commonwealth v. Blystone, 549 A.2d 81, 87 (Pa. 1988).
The void for vagueness doctrine requires statutes to be drawn with
sufficient definiteness and specificity to provide fair warning of the conduct
proscribed by the law and to restrict the discretion of governmental
authorities or courts in enforcing the law. Papachristou v. City of
Jacksonville, 405 U.S. 156, 165-170 (1972). The void for vagueness
doctrine applies both to penal and nonpenal statutes. Johnson v. United
States, 576 U.S. 591, 612-13 (2015) (Thomas, J., concurring in judgment)
(collecting cases). We therefore apply it here, even though SORNA is not a
penal statute. See Butler, 226 A.3d 972, 976 (lifetime registration,
notification, and counseling requirements applicable to SVP’s do not
constitute criminal punishment); Commonwealth v. Lacombe, 234 A.3d
602 (Pa. 2020) (Subchapter I of SORNA is nonpunitive and does not violate
constitutional ex post facto principles).
Appellant argues that SORNA’s SVP assessment procedures are void
for vagueness for the following reasons:
[SORNA defines an SVP as] someone who has a mental
abnormality or personality disorder that makes them likely to
reoffend by “engag[ing] in predatory sexually violent offenses[] .
. .” 42 Pa.C.S.[A.] § 9799.53. In making that determination,
the Court is required to consider a number of factors including
“[c]haracteristics of the individual, including . . . . (iii) A mental
illness, mental disability or mental abnormality.” 42 Pa.C.S.[A.]
§ 9799.58(b)(3). Yet because of the manner in which the
statute is written, the absence of any one of those factors, i.e.,
including whether or not the personal has a mental health
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condition, is not considered dispositive. The courts and SOAB
are free to interpret and apply the statute in any way it wishes
and for this reason the statute must fail.
Appellant’s Brief at 32-33. Appellant further objects that Section
9799.58(b)(4), which calls for assessment of “factors that are supported in a
sexual offender assessment field as criteria reasonably related to the risk of
reoffense,” fails to specify what these factors should be. Id. at 31.
It does not appear that Pennsylvania appellate courts have addressed
the constitutionality of SORNA’s SVP assessment procedures. Two decades
ago, however, this Court held in Kopicz that the SVP assessment
procedures in Megan’s Law II were not void for vagueness. Kopicz’s
incisive analysis deserves recitation at length:
The Act [Megan’s Law II] defines a “sexually violent predator”
as:
A person who has been convicted of a sexually
violent offense as set forth in section 9795.1
(relating to registration) and who is determined to be
a sexually violent predator under section 9795.4
(relating to assessments) due to a mental
abnormality or personality disorder that makes the
person likely to engage in predatory sexually violent
offenses.
42 Pa.C.S.A. § 9792. Moreover, “mental abnormality” is defined
as:
A congenital or acquired condition of a person that
affects the emotional or volitional capacity of the
person in a manner that predisposes that person to
the commission of criminal sexual acts to a degree
that makes the person a menace to the health and
safety of other persons.
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Id. Although the term “personality disorder” is not defined in
the Act, it is a psychiatric term defined in the Diagnostic and
Statistical Manual of Mental Disorders IV. Finally, the Act defines
“predatory” sexually violent offenses as ones in which the act is
“directed at a stranger or at a person with whom a relationship
has been established or promoted for the primary purpose of
victimization.” 42 Pa.C.S.A. § 9792.
A statute is constitutionally void [for vagueness] only if it is so
vague that persons of common intelligence must necessarily
guess at its meaning and differ as to its application. A vague law
impermissibly delegates basic policy matters to policemen,
judges, and juries for resolution on an ad hoc and subjective
basis, with the attendant dangers of arbitrary and discriminatory
application. However, a statute will not be deemed
unconstitutionally vague if the terms, when read in context, are
sufficiently specific that they are not subject to arbitrary and
discriminatory application.
[Commonwealth v. Cotto, 753 A.2d 217, 220 (Pa. 2000)].
Appellant contends that the definitions of “mental abnormality”
and “personality disorder” provide no objective standards, so
that the potential for an erroneous classification of an offender
as a sexually violent predator is enormous. Indeed, he argues
that, under the definition provided in the Act, an offender could
be diagnosed as having a “mental abnormality” simply because
the court deems him to be a “menace” to society. In addition,
because the psychiatric definition of “personality disorder”
contains a catchall diagnosis, “identifying an offender as
possessing a psychiatric disorder becomes merely a formality as
an offender conceivably will fit within the overreaching
parameters of this definition even if that offender does not fall
within any of the other nine diagnoses.”
This Court’s recent decision in Commonwealth v. Rhoads, 836
A.2d 159 (Pa. Super. 2003), is controlling. There, as here, the
appellant mounted a void for vagueness challenge against the
Act's definition of “sexually violent predator.” We noted that an
offender is classified as a “sexually violent predator” only if he
has been convicted of one of the predicate offenses listed in §
9795.1, and then only after he has undergone a thorough
assessment hearing pursuant to § 9795.4. Section 9795.4(b)
lists numerous factors that the [SOAB] must consider before
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making its determination. These factors relate to (a) the facts of
the offense, i.e., number of victims, the age and mental capacity
of the victim, the relationship of the offender to the victim, the
nature of the sexual contact, and whether force or unusual
cruelty was used in the attack; (b) the offender’s prior history,
i.e., his prior criminal record, including sentences completed,
and his participation in sexual offender programs; (c) the
characteristics of the offender, i.e., his age, use of illegal drugs,
mental illness or abnormality, and any behavioral characteristics
that contribute to his conduct; and (d) any other relevant factors
relating to his risk of reoffense. 42 Pa.C.S.A. § 9795.4(b). As
we held in Rhoads, supra,Given the definitive filtering mechanism offered by §
9795.1 in term[s] of clearly defining who is subject
to a SVP assessment and the exhaustive
determinative factors utilized in making such an
assessment in accordance with § 9795.4, we find the
statute is sufficiently clear and specific to withstand
appellant’s constitutional challenge.
Id. at 162–63. Appellant offers no new argument here; thus,
his claim fails.
Id. at 348-50.
The text in Megan’s Law II that survived a void-for-vagueness
challenge in Kopicz is identical to the text in SORNA that Appellant claims is
void for vagueness in the present case. Compare 42 Pa.C.S.A. § 9799.53
(SORNA’s definitions of “sexually violent predator,” “mental abnormality,”
and “predatory”) with 42 Pa.C.S.A. § 9792 (expired December 20, 2012)
(identical definitions in Megan’s Law II); compare also 42 Pa.C.S.A. §
9799.58 (SORNA’s criteria for SVP assessment) with 42 Pa.C.S.A. § 9795.4
(expired December 20, 2012) (identical assessment criteria in Megan’s Law
II). SORNA thus contains the same “definitive filtering mechanism[s]” as
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Megan’s Law II for distinguishing SVP’s from non-SVP’s. Accordingly, we
hold that the trial court properly rejected Appellant’s argument that SORNA’s
SVP assessment procedures are void for vagueness.
Next, Appellant argues that the SVP designation process is
unconstitutionally overbroad based on his claim that all sex offenders are
classified as SVP’s unless there is no victim or the defendant has no mental
abnormality. We disagree.
A statute is overbroad
if by its reach it punishes a substantial amount of
constitutionally-protected conduct. If the overbreadth of the
statute is substantial, judged in relation to its legitimate sweep,
it may not be enforced against anyone until it is narrowed to
reach only unprotected activity. The function of overbreadth
adjudication, however, attenuates as the prohibited behavior
moves from pure speech towards conduct, where the conduct
falls within the scope of otherwise valid criminal laws that reflect
legitimate state interests.
Commonwealth v. Mayfield, 832 A.2d 418, 425 (Pa. Super. 2003).
Appellant’s argument fails because the SVP assessment process does
not punish constitutionally protected conduct. The first qualification for SVP
status is a conviction for a “sexually violent offense,” which Subchapter I of
SORNA defines to include various serious felonies (e.g., rape, IDSI,
kidnapping a minor and other forms of sexual assault). See under 42
Pa.C.S.A. §§ 9799.53 and 9799.55. Obviously, none of this criminal conduct
is constitutionally protected. In addition, as discussed above, not all
defendants convicted of sexually violent offense qualify as SVP’s. A
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defendant is not designated as an SVP unless, inter alia, he possesses “a
mental abnormality or personality disorder which makes [him] to engage in
predatory sexually violent offenses,” 42 Pa. C.S.A. § 9799.53, a standard
that requires analysis of fifteen criteria concerning the defendant’s individual
characteristics, the nature of the offense, and the defendant’s prior offense
history. 42 Pa.C.S.A. § 9799.58(b). In short, the SVP statute is not
overbroad because it has two reliable safeguards against SVP treatment of
constitutionally protected conduct: the requirement that the defendant be
convicted of a sexually violent offense, and the additional requirement that
he fulfill the rigorous criteria within Section 9799.58(b).
In his final argument, Appellant contends that the SVP statute is
unconstitutional because it is punitive in nature, but only clear and
convincing evidence is necessary to establish that he is an SVP instead of
proof beyond a reasonable doubt. This argument fail as our Supreme
Court’s recent decisions in Butler and LaCombe provide that SORNA is non-
punitive.
For these reasons, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/16/2022
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