Com. v. J., R. ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
R.L.J., JR., : No. 2003 MDA 2019
:
Appellant :
Appeal from the PCRA Order Entered November 12, 2019,
in the Court of Common Pleas of Lancaster County
Criminal Division at No. CP-36-CR-0000848-2015
BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 02, 2020
R.L.J., Jr. (hereinafter, “appellant”), appeals from the November 12,
2019 order denying, in part, and granting, in part,1 his amended petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. After careful review, we affirm.
The factual history of this case is not pertinent to our disposition and
need not be reiterated here. On January 27, 2016, a jury found appellant
guilty of rape of a child, two counts of involuntary deviate sexual intercourse
with a child, unlawful contact with a minor, corruption of minors, incest, and
1 The PCRA court granted appellant relief with respect to his claim that the
lifetime registration requirements under SORNA were illegal. (See PCRA court
order, 11/13/19 at ¶ 2; PCRA court opinion, 11/12/19 at 22-37.) The
registration requirements are not a subject of the instant appeal.
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indecent assault of a child less than 13 years of age.2 These convictions
stemmed from appellant’s repeated sexual assault of his minor daughter, who
was under the age of 13 at the time. Following a Sexual Offender Assessment
Board Evaluation, the trial court determined that appellant did not meet the
criteria to be classified a sexually violent predator. On May 10, 2016, the trial
court sentenced appellant to an aggregate term of 31 to 70 years’
imprisonment. In addition to his term of incarceration, appellant was required
to become a lifetime registrant under the Sexual Registration and Notification
Act (“SORNA”), 42 Pa.C.S.A. § 9799.10 et. seq. Appellant filed post-sentence
motions for reconsideration of his sentence, which were granted by the trial
court on August 5, 2016. That same day, the trial court resentenced appellant
to an aggregate judgment of sentence of 22 to 50 years’ imprisonment. The
registration requirements imposed by SORNA remained in place. On April 12,
2017, a panel of this court affirmed appellant’s judgment of sentence, and our
supreme court denied appellant’s petition for allowance of appeal on
September 19, 2017. See Commonwealth v. Jusino, 169 A.3d 1159
(Pa.Super. 2017), appeal denied, 170 A.3d 1058 (Pa. 2017).
The remaining procedural history of this case, as gleaned from the PCRA
court opinion, is as follows:
On October 30, 2017, [appellant] filed a pro se
Motion for Reconsideration of Sentence, which the
court deemed as a timely, initial petition seeking relief
218 Pa.C.S.A. §§ 3121(c), 3125(b), 6318(a)(1), 6301(a)(1)(ii), 4302(b)(1),
and 3126(a)(7), respectively.
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under the [PCRA]. Additionally, by order of the same
date, the court granted [appellant] leave to proceed
in forma pauperis; appointed Dennis C. Dougherty,
Esquire, as counsel for [appellant]; granted counsel
sixty days to file either an amended post-conviction
motion or provide notice that no such amended
motion would be filed; and, directed the attorney for
the Commonwealth to file an answer within thirty days
thereafter. On December 28, 2017, counsel for
[appellant] filed a Motion for Extension of Time to file
an amended [PCRA] petition, which was granted by
order of the same date. Thereafter, on March 2, 2018,
counsel filed an Amended PCRA Petition alleging that
[appellant’s] trial counsel was ineffective when he
failed, at trial, to prevent the introduction of evidence
regarding [appellant’s] prior police contacts and
opinion evidence offered by Detective Gareth Lowe as
to [appellant’s] veracity in his denial of the
allegations. The Amended PCRA petition also alleges
that [appellant] should not be required to register as
a sex offender under SORNA as the crimes for which
he was convicted occurred prior to December 20,
2012.
....
By order dated April 25, 2018, the court scheduled an
evidentiary hearing relative to [appellant’s] Amended
PCRA Petition. Following a change in date, the hearing
was conducted before the court on August 3, 2018.
On the same date, by agreement of the parties, the
court scheduled a supplemental PCRA hearing for
October 18, 2018. Subsequently, by agreement of
the parties, the supplemental hearing was canceled,
and the court established a briefing schedule by an
order dated October 16, 2018.
....
Thereafter, on June 19, 2019, the [PCRA c]ourt
ordered counsel for the parties to submit
supplemental written memoranda regarding the
applicability of . . . Commonwealth v. Alston, 212
A.3d 526 (Pa.Super. 2019) (holding the defendant’s
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SVP designation by clear and convincing evidence
violated the state and federal constitutions and that
the defendant was entitled to the lowest punishment
under SORNA where his offenses straddled the
operative dates between statutes governing sexual
offender registration and continued registration of
sexual offenders, and the jury did not specifically find
dates of the offenses). The Commonwealth filed its
memorandum on July 22, 2019, acknowledging that
the present case is analogous to Alston, and
contending that the court should, therefore, impose
the lesser sex offender registration and notification
requirements under subchapter I of Act 29 of 2018.
PCRA court opinion, 11/12/19 at 3-5 (footnotes omitted).
On November 12, 2019, the PCRA court entered an opinion and order
denying appellant relief with respect to his ineffective assistance of counsel
claims but granted him relief with respect to his claim under the registration
requirements.3 As noted, the registration requirements are not a subject of
the instant appeal. This timely appeal followed on December 12, 2019. On
December 13, 2019, the PCRA court ordered appellant to file a concise
statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b). Appellant filed a timely Rule 1925(b) statement on
January 2, 2020. On January 3, 2020, the PCRA court entered an order
indicating that it was relying on the reasoning set forth in its November 12,
2019 opinion and that no further Rule 1925(a) opinion would be forthcoming.
Appellant raises the following issues for our review:
3 The PCRA court concluded that appellant is subject to Megan’s Law II and
required to register for his lifetime based on the underlying offenses.
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I. [Whether] the PCRA court err[ed] when it found
trial counsel[4] was not ineffective when [trial]
counsel sought and did not object to the
introduction of [appellant’s] prior arrests[?]
II. [Whether] the PCRA court erred when it found
trial counsel was not ineffective when counsel
sought [Lancaster City Police Detective Gareth
Lowe’s] opinion testimony as to whether
[appellant] was lying when he denied the
accusations against him[?]
Appellant’s brief at 9, 15 (full capitalization omitted).
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)
(citations omitted). In order to be eligible for PCRA relief, a petitioner must
plead and prove by a preponderance of the evidence that her conviction or
sentence arose from one or more of the errors listed at 42 Pa.C.S.A.
§ 9543(a)(2). Further, these issues must be neither previously litigated nor
waived. 42 Pa.C.S.A. § 9543(a)(3).
Both of appellant’s claims concern the ineffectiveness of his trial
counsel. To prevail on a claim of ineffective assistance of counsel under the
4 Appellant was represented during his trial by Ronald Gross, Esq. (“trial
counsel”).
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PCRA, a petitioner must plead and prove by a preponderance of the evidence
that counsel’s ineffectiveness “so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken place.”
42 Pa.C.S.A. § 9543(a)(2)(ii). We apply a three-pronged test for determining
whether trial counsel was ineffective, derived from the test articulated by the
Supreme Court of the United States in Strickland v. Washington, 466 U.S.
668, 687 (1984), and as applied in Commonwealth v. Pierce, 527 A.2d 973
(Pa. 1987). Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013).
The Pierce test requires a PCRA petitioner to prove:
(1) the underlying legal claim was of arguable merit;
(2) counsel had no reasonable strategic basis for his
action or inaction; and (3) the petitioner was
prejudiced—that is, but for counsel’s deficient
stewardship, there is a reasonable likelihood the
outcome of the proceedings would have been
different.
Id., citing Pierce, 527 A.2d at 975.
This court has explained that a petitioner “must meet all three prongs
of the test for ineffectiveness[.]” Commonwealth v. Charleston, 94 A.3d
1012, 1020 (Pa.Super. 2014) (citation and internal quotation marks omitted),
appeal denied, 104 A.3d 523 (Pa. 2014). “[C]ounsel is presumed to be
effective and the burden of demonstrating ineffectiveness rests on appellant.”
Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011) (citation
omitted), appeal denied, 30 A.3d 487 (Pa. 2011). Additionally, we note that
counsel cannot be found ineffective for failing to raise a claim that is devoid
of merit. See Commonwealth v. Ligons, 971 A.2d 1125, 1146 (Pa. 2009).
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Following a thorough review of the record, including the briefs of the
parties, the applicable law, and the well-reasoned opinion of the PCRA court,
it is our determination that appellant’s claims warrant no relief. The PCRA
court authored a comprehensive, 39-page opinion wherein it devoted
14 pages to discussing both of appellant’s ineffectiveness claims and
concluding that they are without arguable merit. We find that the PCRA court’s
conclusions are supported by competent evidence and are clearly free of legal
error. Specifically, we agree with the PCRA court that trial counsel was not
ineffective in failing to object to references to the fact that appellant had
previously been arrested, which were on the nearly 10-hour video recording
of appellant’s interrogation that the Commonwealth played for the jury.
(PCRA court opinion, 11/12/19 at 9.) As the PCRA court found, trial counsel
“credibly testified” that his chosen defense strategy was to demonstrate to the
jury that appellant was subject to an unfair and biased interrogation that
resulted in an involuntary and unreliable videotaped confession, and objecting
would have undercut his argument. (Id. at 10-12.) Moreover, we agree with
the PCRA court that any prejudice appellant suffered from reference to his
prior arrests was cured by the trial court’s cautionary instruction to the jury.
(Id. at 14-15.)
Likewise, we agree with the PCRA court that trial counsel was not
ineffective for questioning Detective Lowe on his opinion of appellant’s
veracity during the recorded statement. (Id. at 16.) As explained by the
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PCRA court, although this testimony was prejudicial in nature, trial counsel’s
testimony at the evidentiary hearing revealed that the solicitation of this
opinion testimony from Detective Lowe “was consistent with his chosen
defense strategy.” (Id. at 17.) The PCRA court explained:
[Trial] counsel diligently strived to convince the jury
that [appellant’s] statement was given involuntarily,
and his goal was to demonstrate that
[Detective Lowe] had prematurely and unfairly
formed an opinion as to [appellant’s] guilt before
questioning him. As such, [Detective Lowe] became
biased and fixated on [appellant] to the exclusion of
all others. Such bias controlled the manner of the
interrogation and led to [Detective Lowe’s]
browbeating [appellant] into the damaging
admissions[,] which were offered near the end of the
extensive interview. [Trial c]ounsel took the position
that [Detective Lowe] was unwilling to terminate the
interrogation until he heard what he wanted to hear.
Again, counsel repeatedly introduced evidence and
offered such argument throughout the entire trial.
The fact that such strategy was ultimately
unsuccessful is of no import absent any indication that
another strategy offered a significantly greater chance
of success.
Id. at 17 (citation to notes of testimony omitted).
Based on the foregoing, we adopt the relevant portions of the PCRA
court’s comprehensive opinion as our own for purposes of this appellate
review, and affirm its November 12, 2019 order denying, in part, appellant’s
amended PCRA petition.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/2020
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OPINION AND ORDER
Pending before the court is the amended petition for post-conviction relief filed by
Defendant, R-L·J-Jr., on March 2, 2018. For the reasons set out below, the
petition will be granted in part and denied in part.
PROCEDURAL AND FACTUAL BACKGROUND
By Criminal Information docketed to Number CP-36-CR-0000848-2015, Defendant was
charged with allegedly having committed the offenses of Rape of a Child 1 , two counts of
Involuntary Deviate Sexual lntercourse2, Unlawful Contact with Minor', Corruption of Minors4,
Incest", Indecent Assault", and Indecent Exposure". Said charges resulted from alleged incidents
involving Defendant's minor daughter, who was under the age of thirteen. Although the
Commonwealth contended that said course of conduct stretched from December 1, 2012 through
October 14, 2014, the Commonwealth has conceded that there was no specific finding by the jury
in this matter as to when the offenses occurred. (Commonwealth Memorandum, July 22, 2019).
Following a jury trial conducted before the Honorable James P. Cullen, Defendant, who
was represented by counsel8, was convicted of the offenses of Rape, two counts of Involuntary
J 18 Pa.C.S.A.§ 312J(c).
2 18 Pa.C.S.A.§3123(b).
3 18 Pa.C.S.A.§6318(a)(l).
4 18 Pa.C.S.A. §630 I (a)( 1 )(ii).
5 18 Pa.C.S.A.§4302(b)(l).
6 18 Pa.C.S.A.§3 l 26(a)(7).
7 18 Pa.C.S.A.§3127(a).
8 Defendant was represented at trial by Attorney Ronald Gross.
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3_0pinion and Order
Deviate Sexual Intercourse, Unlawful Contact with Minor, Corruption of Minors, Incest, and
Indecent Assault. The remaining charge was nolle pressed by the Commonwealth at the time of
sentencing.9 On May 10, 2016, Defendant was sentenced to an aggregate term of not less than
I
thirty-one nor more than seventy years incarceration. At sentencing, it was noted that the Sexual
Offenders Assessment Board determined that Defendant did not meet the criteria to be deemed a
sexually violent predator. In addition to his term of incarceration, Defendant was required to
become a lifetime registrant under the Sexual Offender Registration and Notification Act
I
(hereinafter, "SO RNA") IO.
On May 20, 2016, Defendant, through trial counsel, filed a timely post-sentence motion in
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the nature of a Motion to Reconsider Sentence and trial counsel filed a simultaneous Motion to
Withdraw as Counsel. By order filed on June 1, 2016, Attorney Vincent J. Quinn was appointed
as appellate counsel for Defendant and Attorney Gross was permitted to withdraw as counsel.
Additionally, by order filed on June l , 2016, the court directed the attorney for the Commonwealth
file an answer to Defendant's post-sentence motion. On June 6, 2016, newly appointed counsel
I
for Defendant filed a motion seeking to amend Defendant's post-sentence motion. By order of
'
the same date, the court directed the attorney for the Commonwealth to file an answer to said
9 It is noted that the sentencing sheet completed at the time of sentencing on May IO, 2016 incorrectly indicates that
the charge of Indecent Assault had been nolle prossed. Defendant was found guilty of said charge; however, the
court deemed the charge to merge for sentencing purposes.
10 42 Pa.C.S.A.§ 9799.10 et. seq ..
2
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3_0pinion and Order
motion. Following the filing of such answer by the attorney for the Commonwealth, the court
I .
granted Defendant's request to file an amended post-sentence motion by order dated June 24, 2016.
On July 12, 2016, Defendant filed an Amended Motion to Reconsider Sentence. By order of the
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same date, the court directed the attorney for the Commonwealth to file an answer to such amended
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post-sentence motion, which the Commonwealth filed on July 21, 2016. By order filed on August
5, 2016, the court modified Defendant's sentence to reflect an aggregate sentence of not less than
twenty-two years nor more than fifty years incarceration. The registration requirements imposed
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by the Sexual Offender Notification and Registration Act remained
On August 12, 2016, Defendant filed a timely Notice of Appeal to the Superior Court of
I
Pennsylvania. By Merriorandum Opinion and Order dated April 12, 2017 the Superior Court of
Pennsylvania affirmed Defendant's conviction and sentence. By Order dated September 19,
2017, the Pennsylvania Supreme Court denied Defendant's Petition for Allowance of Appeal.
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On October 30, 017, Defendant filed a prose Motion for Reconsideration of Sentence,
which the court deemed as a timely, initial petition seeking relief under the Post-Conviction Relief
Act (hereinafter "PCRA"). Additionally, by order of the same date, the court granted Defendant
leave to proceed in forma pauperis; appointed Dennis C. Dougherty, Esquire, as counsel for
Defendant; granted counsel sixty days to file either an amended post-conviction motion or provide
notice that no such amended motion would be filed; and, directed the attorney for the
I
Commonwealth to file an answer within thirty days thereafter. On December 28, 2017, counsel
3
3_0pinion and Order
for Defendant filed a Motion for Extension of Time to file an amended post-conviction petition,
which was granted by order of the same date. Thereafter, on March 2, 2018, counsel filed an
Amended PCRA Petition alleging that Defendant's trial counsel11 was ineffective when he failed,
I
at trial, to prevent the introduction of evidence regarding Defendant's prior police contacts and
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opinion evidence offered by Detective Gareth Lowe as to Defendant's veracity in his denial of the
I
allegations. The Amended PCRA petition also alleges that Defendant should not be required to
register as a sex offendJr under SORN A as the crimes for which he was convicted occurred prior
to December 20, 2012. On March 28, 2018, the attorney for the Commonwealth filed a motion
seeking an extension of time in which to respond to Defendant's Amended PCRA Petition. Said
request was granted on the same day by order of President Judge Dennis E. Reinaker. 12 On April
23, 2018, the attorney for the Commonwealth filed such response.
By order dated April 25, 2018, the court scheduled an evidentiary hearing relative to
Defendant's Amended PCRA Petition. Following a change in date, the hearing was conducted
before the court on August 3, 2018. On the same date, by agreement of the parties, the court
scheduled a supplemental PCRA hearing for October 18, 2018. Subsequently, by agreement of
11 PCRA Counsel originally listed trial counsel in the Amended PCRA as Attorney Jay Whittle, as he was the
attorney of record. At the beginning of the PCRA hearing conducted on August 3, 2018, PCRA counsel orally
moved to amend the petition to correctly reflect Attorney Gross as the trial counsel.
12 By order of President Judge Dennis E. Reinaker dated April 4, 2018, the instant matter was administratively
reassigned to the undersigned for further disposition.
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3_0pinion and Order
the parties, the supplemental hearing was canceled, and the court established a briefing schedule
by an order dated October 16, 2018. On November 14, 2018, counsel for the Defendant filed a
motion seeking additional time to file Defendant's brief, which was granted by order of the same
date. Defendant filed his brief in support of the requested relief on December 13, 2018. On
January 10, 2019, the attorney for the Commonwealth filed a motion seeking additional time to
file the Commonwealth's brief, which was granted by order of the same date. On February 7,
2019, the attorney for the Commonwealth filed a second motion seeking additional time to file the
Commonwealth's brief, which was granted by order of the same date. On March 26, 2019, the
Commonwealth filed its responsive brief.
I
Thereafter, on June 19, 2019, the Court ordered counsel for the parties to submit
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supplemental written memoranda regarding the applicability of the decision of the Superior Court
I
of Pennsylvania in Commonwealth v. Alston. 212 A.3d 526 (Pa. Super. 2019) (holding the
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defendant's SVP designation by clear and convincing evidence violated the state and federal
constitutions and that the defendant was entitled to the lowest punishment under SORNA where
I
his offenses straddled the operative dates between statutes governing sexual offender registration
l
and continued registration of sexual offenders, and the jury did not specifically find dates of the
I
offenses). The Commonwealth filed its memorandum on July 22, 2019, acknowledging that the
present case is analogous to Alston, and contending that the court should, therefore, impose the
lesser sex offender regisJration and notification requirements under subchapter I of Act 29 of 2018.
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3_0pinion and Order
Defendant filed his memorandum on August 2, 2019.
I
The matter is now ripe for resolution.
DISCUSSION
In order to be eligible for relief under the Post-Conviction Relief Act ("PCRA'') 13, a
l
defendant must satisfy the requirements of 42 Pa. C.S. § 9543 which provide in pertinent part:
I
(a) General rule. -To be eligible for relief under this subchapter, the petitioner must
plead and prove by a preponderance of the evidence all of the following:
(1) That the petitioner has been convicted of a crime under the laws of the
Commonwealth and is at the time relief is granted:
(i) currently serving a sentence of imprisonment, probation, or parole for
the crime;
(2) That the conviction or sentence resulted from one or more of the following:
(i) A violation of the Constitution of this Commonwealth or the
Constitution or laws of the United States which, in the circumstances
of the particular case, so undermine the truth-determining process that no
reliable adjudication of guilt or innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the circumstances of the
particular case, I so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.
(4) That the failure to litigate the issue prior to or during trial, during unitary review
or on direct appeal could not have been the result of any rational, strategic or tactical
decision by counsel.
42 Pa. C.S. § 9543(a).
1
13. 42 Pa. C.S §§9541-9546.
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3_0pinion and Order
The defendant bears the burden of establishing by a preponderance of the evidence that his
conviction resulted from one or more of the errors enumerated in the PCRA. Commonwealth v.
I
Fears. 86 A.3d 795, 803 (Pa. 2014).
INEFFECTIVE ASSISTANCE OF COUNSEL
The law presumes counsel is effective and the burden of proving ineffectiveness is on the
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defendant. Fears, 86 A.3d at 804 (citations omitted). To obtain relief, the petitioner must
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demonstrate that counsel's performance was deficient and that deficiency prejudiced the petitioner.
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Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). A petitioner
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establishes prejudice when he demonstrates "that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different." Id. at
694, 104 S. Ct. at 2068; Commonwealth v. Mallory, 941 A.2d 686, 704 (Pa. 2008). In order to
show that counsel was ineffective, a petitioner must show by a preponderance of the evidence that
his claim is of arguable merit, that counsel had no reasonable basis for the act or omission in
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question, and that counsel's ineffectiveness prejudiced the petitioner. Fears, 86 A.3d at 804
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(citations omitted); 42 Pa. C.S. § 9543(a)(2)(ii). "Failure to prove any prong of this test will defeat
an ineffectiveness claim." Fears. 86 A.3d at 804.
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In evaluating a properly presented claim of ineffective assistance of counsel, a reviewing
I
court will examine the basis for counsel's actions only if it is first persuaded that the claim of
ineffectiveness has argJable merit. Commonwealth v. Pursell. 724 A.2d 293, 304 (Pa. 1999). If
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3_0pinion and Order
the claim is without merit, the inquiry ends as counsel will not be deemed ineffective for failing to
1
pursue a meritless, baseless or frivolous claim. Fears, 86 A.3d at 804.
With respect to the second prong of the standard, a party must demonstrate that counsel's
I
strategy was "so unreasonable that no competent lawyer would have chosen that course of
conduct." Common_wealth v. Chmiel. 889 A.2d 501, 541 (Pa. 2005) (citations omitted). A
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reviewing court will find an attorney's strategy unreasonable only if an unchosen alternative would
offer a substantially greater potential for success than that actually chosen. Commonwealth v.
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Lawrence, 165 A.3d 34, 41 (Pa. Super. 2017) (citations omitted).
Regarding the final prong of the test, the Pennsylvania Supreme Court has consistently
held that if the party asserting the claim fails to establish the prejudice prong, the claim may be
dismissed on that basis alone without a determination of whether the party has met the first two
I
prongs. Chimel, 889 A.2d at 540. The prejudice inquiry "requires consideration of the totality
of the evidence." Colmmonwealth v. Spotz, 870 A.2d 822, 834 n.15 (Pa. 2005) {quoting
I
Strickland, 466 U.S. at 695, 104 S. Ct. at 2069). Only in the rarest of circumstances, those where
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counsel completely failed to oppose the prosecution's case, for example, may prejudice be
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presumed. Spotz, 870 A.2d at 834 (citations omitted). The defendant must demonstrate that
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"there is a reasonable probability that the result of the proceeding would have been different absent
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[counsel's] error." Commonwealth v. Lesko, 15 A.3d 345, 373 (Pa. 2011).
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3_0pinion and Order
In the instant matter, Defendant contends that trial counsel was ineffective by failing to
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prevent the Commonwealth's introduction of evidence regarding Defendant's prior police
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contacts; as well as, opinion evidence offered by Detective Gareth Lowe of the Lancaster City
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Bureau of Police as to the veracity of Defendant's denials of the charged allegations. The court
finds neither such argulent persuasive.
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With regard to qefendant's initial assertion that trial counsel was ineffective for failing to
prevent the Commonwealth from introducing evidence regarding his prior police contacts, it is
noted that, at trial, during the testimony of Detective Gareth Lowe of the Lancaster City Bureau of
Police, the Commonwealth presented the jury with the complete video recording of Defendant's
interrogation by members of the Lancaster City Bureau of Police. Said recording was nearly ten
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hours in duration. Although Defendant initially offered repeated denials of any alleged criminal
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conduct, he eventually made inculpatory comments and admissions to many of the charged
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offenses. During his testimony, Detective Lowe stated that Defendant had been arrested and
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given his Miranda warnings on two prior occasions. (N.T., 1124/19, p. 179). Additionally, on the
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date of such interrogation, Defendant had been arrested on a warrant regarding an unrelated
Protection from Abuse/Indirect Criminal Contempt matter. (N.T., 1/24/19, p. 177). Trial
counsel did not object to such testimony.
It is noted that evidence of prior bad acts or unrelated criminal activity is generally
inadmissible to show that a defendant acted in conformity with those prior bad acts or to show
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3_0pinion and Order
criminal propensity. Pa.R.E. 404(b)(l). The purpose of this rule is:
I
[T]o prevent the conviction of an accused for one crime by the use of evidence that
he has committed other unrelated crimes, and to preclude the inference that because
he has committed other crimes he was more liable to commit the crime for which
he is being tried. The presumed effect of such evidence is to predispose the minds
of the jurors to believe the accused guilty and thus effectively to strip him of the
presumption of innocence.
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Commonwealth v. Harris, 397 A.2d 424, 427-28 (Pa. Super. 1979). However, evidence of other
crimes may be admissible if it is relevant to show some other legitimate purpose. See, Pa.R.E.
404(b); Commonwe<h v. Pierce, 527 A.2d 973 (Pa. 1987); Commonwealth v. Carpenter, 372
A.2d 806 (Pa. 1977); Commonwealth v. Ivy, 146 A.3d241,251 (Pa. Super. 2016); Commonwealth
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v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015). Our Supreme Court has observed that a trial court
is not "required to sanitize the trial to eliminate all unpleasant facts from the jury's consideration
where those are relevant to the issues .... " Commonwealth v. Paddy, 800 A.2d 294, 308 (Pa.
2002)(quoting Commonwealth v. Lark, 543 A.2d 491, 501 (Pa. 1988)). A litigant opens the door
to inadmissible evidence by presenting proof that creates a false impression refuted by otherwise
prohibited evidence. Commonwealth v. Nypaver, 69 A.3d 708, 716 (Pa. Super. 2013) (quoting
Commonwealth v. PuksM, 951 A.2d 267, 280 (Pa. 2008).
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Applied to the instant matter, at the evidentiary hearing conducted pertaining to
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Defendant's Amended PCRA petition, trial counsel credibly testified that his chosen defense
strategy was to demonstrate to the jury that Defendant's videotaped confession had been
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3_0pinion and Order
involuntarily given. Counsel testified that he made an affirmative decision to show Defendant's
entire statement, which was nearly ten hours in duration, "to show that, in my opinion, that
[Defendant] was just broken down throughout." (PCRA Hrg., pgs. I 0-11 ). Trial counsel
explained that he wanted the jury to "almost feel exhausted watching this . . . the same way
[Defendant] was exhausted in this interview." (Id. at 17). In reaching this strategic decision,
trial counsel anticipated that such decision may result in the Commonwealth being permitted to
introduce evidence that Defendant had been arrested and given his Miranda warnings on two
previous occasions in an effort to rebut any assertion that Defendant lacked an understanding as to
what was happening; however, counsel believed that he lacked the ability to object to the admission
I
of such evidence based upon the evidence and argument which counsel was trying to present. (Id.
at 15-16)14.
Counsel also testified that he felt constrained not to object to testimony related to the reason
I
for which Defendant was arrested and transported to the police station prior to giving his recorded
bxplained,
statement. As counsel
I
[T]he issue we had was, he wasn't there just for the little girl. He got there
from another matter, and we'd be cutting out some time of that video by having- by
I
14 At the evidentiary hearing, trial counsel for both the Commonwealth and Defendant credibly testified that an
informal, in-chambers discussion was held regarding admission of the entire statement without substantial redaction.
While troubled by the fact that such discussion would have occurred off the record, the court finds that the failure of
trial counsel to offer any objections thereto not to be controlling on the conclusions reached herein - particularly,
where, as noted, said evidence was properly introduced to rebut the evidence and arguments advanced by counsel
for the Defendant and where such strategy was reasonable given the challenges faced by counsel for the Defendant
as a result of the extensive evidence presented at trial by the Commonwealth.
11
3_0pinion and Order
saying, for example, he just showed up at this police station for questioning.
So, ... it really came down to, I can't have my cake and eat it too. Either
I get the whole time in and I want completeness of the video ... from the beginning
and you have to play that and not break it up.
So ... , why they picked him up, that had to come in based on our strategy.
And there was nb way to avoid that aspect, in my opinion. And from talking with
my client, we were just thinking, hey, they know you're in custody, it's for a
different matter, we have to own that, you didn't do anything to your daughter.
(Id. at 11 ). It is noted that the introduction of evidence regarding the indirect crimina1 contempt
matter was consistent with the chosen defense strategy as such evidence permitted counsel to argue
I
to the jury that the investigating law enforcement officers ambushed an unsuspecting person and
then subjected him to a ten-hour, preplanned, biased, and unfair interrogation which led to an
I
unreliable admission 15• Additionally, trial counsel testified that his client understood that playing
the full video would open the door to his prior arrest record being raised in refuting that he did not
understand the situation! (Id. at 17, 22, 27-28).
I
Upon consideration of the foregoing, it is apparent that the evidence now questioned was
properly admitted by the trial court as serving to rebut the advanced arguments, which were central
I
to Defendant's chosen theory of the case. To the extent that the instant claim may have arguable
I
merit, it is noted that such evidence was admitted based upon a specific strategic decision made
I
I
15 In fact, Detective Lowe testified at trial that he and another officer had gone to a certain address to speak with
the occupant regarding a child abuse complaint related to Defendant, but upon finding Defendant there arrested him
on an outstanding warrant. (N.T., 1126116, p. 177). Further, Detective Lowe testified that he indicated to
Defendant that he wished to speak with Defendant regarding an unrelated matter once they reached the police
station, but he did not know if Defend ant was aware of the abuse allegation. (I4,_, at 178- 79).
12
3_0pinion and Order
by trial counsel to best advance Defendant's interests.
I
In this matter, trial counsel was charged with presenting a defense in the face of extensive
evidence offered by the' Commonwealth, as will be addressed below. In recognition of the fact
I
that any defense offered in the instant matter would need to discredit Defendant's own recorded
admissions, trial counsel based his theory of defense in challenging the voluntariness of the
Defendant's admissions to discredit such admissions of criminal, sexual conduct. There can be
little doubt that the only way Defendant could receive a favorable verdict would be to convince
the jury that Defendant's admissions were of an involuntary nature and should be disregarded in
their entirety. Crucial to trial counsel's strategy was the presentation to the jury of the entire ten-
hour interrogation of the Defendant. Such video recording served to demonstrate to the jury: the
duration of the interrogation, the methods employed by the investigating officers in attempting to
extract an admission; and, the occasional, confrontational tone adopted by the officers.
Accordingly, throughout the entire trial, trial counsel argued to the jury that Defendant only made
his inculpatory admissions as the result of a will overwhelmed by the duration and nature of such
interrogation. Counsel argued that any admissions made by Defendant, as a result thereof, lacked
I
inherent credibility and should
I
be disregarded as any such statements were given solely in an effort
to bring an end to the police interrogation Additionally, it is noted that, by presentation of the
I
recorded interview, counsel could demonstrate Defendant's theory of defense without Defendant
I
being exposed to the risk of cross-examination by the attorney for the Commonwealth.
13
3_0pinion and Order
Upon consideration of the totality of the attendant circumstances, this court cannot
conclude that counsel's decisions were so unreasonable that no competent lawyer would have
chosen that course of conduct nor that an unchosen alternative would have offered a substantia1ly
greater potential for success.
The court reaches such decision upon consideration of any possible prejudice which may
have resulted to Defendant based upon the admission of the now cha11enged evidence. Whi1e the
introduction of evidence regarding Defendant's prior arrests may well possess certain inherent
prejudicial impact, it must be considered that jury was provided with no specific information as to
the reasons for the prior arrests and no evidence was presented at trial as to whether any such arrest
resulted in a conviction, The only specific facts introduced regarding these matters was limited
testimony that Defendant was arrested immediately prior to the commencement of his recorded
statement on an existing warrant related to a Protection from Abuse/Indirect Criminal Contempt
matter, which had no relevance to the charges for which Defendant was on trial.
I
Additionally, it is recognized that the trial judge gave a firm cautionary instruction to the
I
jury that Defendant's prior arrests could be used only for the limited purpose of determining the
I
voluntariness of Defendant's statement. Specifically, the trial court charged the jury as follows:
I
There has ... been testimony about the defendant initially being arrested
for an indirect criminal contempt charge as a result of this PFA ....
Also, there was reference to the defendant having been arrested and having
been given his Miranda rights before. Now, there is no evidence that the defendant
has ever been convicted of anything. There is no evidence that these formal arrests
14
3_0pinion and Order
ever went anywhere or anything ever came of them. You may not consider any of
that evidence as evidence of defendant's guilt of these charges. The same is true
of the warrant that you heard read on the videotape of the statement. That was the
first thing that was done. Again, there is no indication whatsoever of the disposition
of that matter, what happened with it, what didn't happen or anything else, so you
cannot use that �s evidence that the defendant is guilty of the offense charged.
(N.T. Jan. 26, 2016, at 246). It is axiomatic that the Law presumes that the jury will follow the
instructions of the trial court. Commqpwealth v. Brown, 786 A.2d 961 (Pa. 2001); see also,
Commonwealth v. Arrington, 86 A.3d 831 (Pa. 2014) (deeming that jury followed limiting
instructions offered by Jtrial judge regarding appropriate consideration of the defendant's prior
criminal convictions).
Lastly, the court need recognize the volume of evidence presented at trial by the
Commonwealth. At trial, the Commonwealth presented the testimony of the minor victim, who
testified with great specificity regarding the nature of the acts committed upon her by the
Defendant in graphic debit, the time period over which said acts occurred, and the location where
such conduct occurred,' The Commonwealth bolstered the credibility of the minor victim's
I
account by presenting the testimony of numerous individuals capable of discussing the nature of
1
the minor victim's disclosures and several prior statements offered by the minor victim which were
consistent with her testiJ10ny at trial. Additionally, and perhaps most problematic for Defendant,
was the admission of 1 the nearly ten hour recorded statement given by Defendant to the
investigating law enforcement officers. As noted above, after offering hours of denials and
I
15
3_0pinion and Order
inconsistent statements, during the interrogation, Defendant made a direct admission to much of
the charged conduct.
In light the forJgoing, Defendant has failed to establish any requisite prejudice. Stated
another way, Defendant is unable to demonstrate any reasonable probability that the result of the
proceeding would have been different absent counsel' s chosen course of action in this regard or
absent admission of the now challenged evidence.
Defendant also I maintains that trial counsel was ineffective for failing to prevent, and
I
repeatedly eliciting, the introduction of testimony offered by Detective Gareth Lowe of the
I
Lancaster City Bureau of Police as to his opinions regarding Defendant's veracity during the
recorded statement.
In addressing this claim, it is noted that our appellate courts have routinely held that the
determination of the credibility
I
of a witness is within the exclusive province of the jury.
Commonwealth v. Crawford, 718 A.2d 768, 772 (Pa. 1998). Thus, expert testimony addressing
the credibility of a wiJess is inadmissible. Commonwealth v. Seese, 517 A.2d 920, 922 (Pa.
1986). "Whether the expert's opinion is offered to attack or enhance, it assumes the same impact
l
- an 'unwarranted appearance of authority in the subject of credibility which is within the facility
I
of the ordinary juror to assess."' Commonwealth v. Spence. 627 A.2d 1176, 1182 (Pa. 1993). In
Commonwealth v. McClure. 144 A.3d 970 (Pa. Super. 2016), the Superior Court of Pennsylvania
l
applied the above rationale beyond the realm of expert witnesses into situations where a law
16
3_0pinion and Order
enforcement officer offers opinions regarding the credibility of the accused. In said decision, the
I
Superior Court found, in a direct appeal context, that the introduction of a law enforcement
I
officer's opinions as to the accused's credibility to constitute prejudicial error, even though the
I
trial court had provided a limiting instruction to the jury. (Id. at 977). Accordingly, this court
deems Defendant's current claim as possessing arguable merit.
Turning to the question of whether trial counsel possessed a reasonable strategic basis for
his actions, trial counsel explained at the evidentiary hearing that such opinion testimony was
consistent with his chosen defense strategy. Stated another way, counsel diligently strived to
l
convince the jury that Defendant's statement was given involuntarily, and his goal was to
demonstrate that the arresting detective had prematurely and unfairly formed an opinion as to the
I
Defendant's guilt before questioning him. As such, the detective became biased and fixated on
I
the Defendant to the exclusion of all others. Such bias controlled the manner of the interrogation
l
and led to the detective browbeating Defendant into the damaging admissions which were offered
near the end of the extensive interview. (PCRA Hrg., pgs. 30-32). Counsel took the position
that the detective was unwilling to terminate the interrogation until he heard what he wanted to
hear. Again, counsel repeatedly introduced evidence and offered such argument throughout the
I
entire trial. The fact that such strategy was ultimately unsuccessful is of no import absent any
indication that another! strategy offered a significantly greater chance of success. Upon
I
consideration of the totality of the attendant circumstances, this court cannot conclude that
17
3_0pinion and Order
counsel, s decisions were so unreasonable that no competent lawyer would have chosen that course
of conduct nor that an' unchosen alternative would have offered such a substantially greater
potential for success.
While this court is cognizant of the above-referenced decision of the Superior Court of
Pennsylvania in Commlnwealth v. McClure, it is noted that McClure was decided in the context
of a direct appeal, rather in a collateral context addressing any strategic decisions made by trial
counsel. Additionally, in McClure, unlike in the present case, the jury did not see and hear the
I
entirety of the defendant's statement about which the law enforcement officer offered his opinion.
The jury was thus depriled of the opportunity to independently assess the defendant's credibility.
I
In the present case, not only did the jurors see and hear Defendant's entire statement, but the trial
judge instructed them in a way that provided them with the tools to independently assess
Defendant, s credibility.
Although trial counsel did not request a specific curative instruction with respect to
I
Detective Lowe's opinion testimony, the trial judge had cautioned the jurors during his opening
1
instructions that it was their responsibility to weigh all the evidence presented and to assess the
credibility of witnesses. (N.T. Jan. 20, 2016, at 8, 11). As part of his jury charge at the
conclusion of the trial, the trial judge explicitly addressed Detective Lowe's questioned testimony,
stating:
18
3_0pinion and Order
The final point deals with some of the testimony by Detective Lowe that
occurred during the cross-examination. What the detective believes, thinks, or
what his opinion is has absolutely nothing to do with your role. Anybody is free to
hold any opinion they wish about any subject they wish. You are to be guided solely
by the evidence in this case and the law as I instruct you. It is your opinion only
that matters and nobody else's.
(N.T. Jan. 26, 2016, at 247-48). Additionally, in explaining that the jurors were the sole judges
I
of the credibility of witnesses and the witness's testimony, the trial judge presented several factors
the jurors could utilize in performing that responsibility. Among these were
I
Did the witness testify in a convincing manner? How did the witness look, act
and speak while testifying? Was the witness's testimony uncertain, confused, self-
contradictory or evasive? Did the witness have any interest in the outcome of the
case? .... How well does the testimony of the witness square with the other
evidence in the case, including the testimony of other witnesses? Was it contradicted
or supported by the other testimony in evidence? Does the witness's testimony
make sense to you?
(Id. at 251 ). Further, the trial judge cautioned the jurors that it was their responsibility to give the
testimony of every witness and all the other evidence whatever credibility and weight they thought
I
it deserved. (Id. at 252). Taken in their entirety, the repeated instructions offered by the trial
1
court with respect to the testimony at issue minimized any potential prejudicial effect of such
evidence.
Additionally, as discussed above, the Commonwealth presented a multitude of evidence at
1
trial against the defendant, including: the testimony of the minor victim; the testimony of
I
numerous witnesses as to prior consistent disclosures and statements made by the victim; and, the
19
3_0pinion and Order
lengthy admissions made by Defendant. Considering such, Defendant has failed to establish any
requisite prejudice.
To the extent that Defendant currently contends that he was prejudiced as a result of the
I
cumulative effect of the alleged errors of trial counsel, it is recognized that the Pennsylvania
repeatedly
Supreme Court has held that no number of failed ineffectiveness claims may
I
collectively warrant relief if they fail to do so individually. Comm2n'Valth v. Johnson, 966 A.2d
523, 532 (Pa. 2009). Thus, to the extent claims are rejected for Jack of arguable merit, there is no
basis for an accumulation claim. Commonwealth v. Sattazahn. 952 A.2d 640, 671 (Pa. 2008).
I
When the failure of individual claims is grounded in lack of prejudice, however, then the
l
cumulative prejudice from those individual claims may be properly assessed. Johnson, 966 A.2d
at 532 (citing Commonlealth v. Pem. 644 A.2d 705, 709 (Pa. 1994) for the principle that a new
trial may be awarded due to cumulative prejudice accrued through multiple instances of trial
counsel's ineffective representation). Based upon this court's review of the record in this matter,
I
and for the reasons stated
I
above, we have individually rejected Defendant's claims of
ineffectiveness based upon a lack of prejudice. Accordingly, we now find that Defendant was
aggregate
failed, even in the to establish ineffective assistance of counsel.
20
3_0pinion and Order
ILLEGALITY OF SENTENCE
Defendant also argues that his lifetime registration under the Sexual Offender Registration
and Notification Act is illegal based on the Pennsylvania Supreme Court decision in
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).16 The Commonwealth acknowledges that
retroactive application Jr SORN A has been deemed unconstitutional by Muniz as violating the Ex
I
Post Facto Clauses of the United States Constitution and Pennsylvania Constitution. The
I
Commonwealth argues.I however, that Defendant is required to register for life under Subchapter
I of Act 29 of 2018, which the Commonwealth seemingly characterizes as non-punitive civil
legislation.
The Commonwealth of Pennsylvania has had a rather checkered history with respect to sex
I
offender registration laws.
I
Initially, Megan's Law I was enacted on October 24, 1995, effective
April 22, 1996. 42 Pa. C.S. §§ 9791-9799. Under this statute, only a few offenses were included
and all offenders were limited to a ten year registration period. The sexually violent predator
:Law
provisions of Megan's I were struck down by the Supreme Court in Commonwealth v.
Williams, 733 A.2d 593 (Pa. 1999), after which Megan's Law II was signed into law on May 10,
I
2000, effective July 10, 2000.
I
16
1t is noted that the arguments and analysis contained in Defendant's Brief in support Amended Post-
Conviction Relief Action makes repeated mention to Act 10 [of20J BJ. The analysis conducted by the court in this
matter wi11 address Act 29 of20J B which was enacted by the General Assembly to replace Act JO, effective June 12,
2018.
21
3_0pinion and Order
This version ofI the law expanded the number of registrants and imposed lifetime
I
registration on the most serious offenders. The provision imposing possible life imprisonment on
predators
sexually violent who failed to comply with registration requirements was struck down
and severed in CommoJwealth v. Williams, 832 A.2d 962 (Pa. 2003) (Williams II), but the rest of
the Jaw remained valid and the Supreme Court concluded "[absent] competent and credible
I
evidence undermining the relevant legislative findings, Megan's Law's registration, notification,
and counseling provisions constitute non-punitive, regulatory measures supporting a legitimate
governmental purpose." Id. at 986. In Commonwealth v. Salter. 858 A.2d 610 (Pa. Super.
2004), the Superior Court undercut the penalty for a registrant failing to verify an address, school
or job by requiring the Commonwealth to prove receipt by the registrant of the form necessary for
verification.
On November 24, 2004, the Legislature passed Megan's Law III which amended Megan's
Law II and further altered the number of offenses and the requirements imposed. Megan's Law
l
III, however, was declared unconstitutional in its entirety ab inuio because its enactment violated
I
the single subject rule. Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013). Before the Supreme
Court held it unconstitutional, however, Megan's Law III was amended several times by the
I
legislature. While lawfully enacted, these amendments did not survive the invalidation of
Megan's Law III. See Commonwealth v. Derhammer. 173 A.3d 723 (Pa. 2017).
Prior to the Neiman decision, Megan's Law III expired and was replaced by SORNA,
I
which took effect December 20, 2012, to bring Pennsylvania into compliance with the federal
Adam Walsh Child Protection and Safety Act of 2006. SORNA applied retroactively to any
individual serving a sentence for a sexual offense and to any individual whose registration period
22
3_0pinion and Order
under a prior registration statute had not expired as of SORNA's effective date.
In Muniz. the Pennsylvania Supreme Court held that retroactive application of the
I
registration provisions of SORNA violated the ex post facto clauses of both the United States
l
Constitution and the Pennsylvania Constitution In order to be deemed an ex post facto law, a
penal law must apply to events occurring before its enactment and it must disadvantage the
I
individual to whom it is applied. Muniz, 164 A.3d at 1196. In Muniz, the defendant's crime
occurred prior to February 7, 2007, the date of his non-jury trial, but he absconded and was not
sentenced until after SORNA took effect. As a consequence, he was ordered to register as a sex
offender for life under SORNA
I
rather than for the ten-year period under Megan's Law II which
had been in effect at the time of his offense. The Supreme Court in Muniz explicitly held that
SORNA's purpose was effectively punitive despite the Legislature's stated non-punitive purpose
of protecting the public from sex offenders.
Subsequently, the Superior Court held that Muniz created a substantive constitutional rule
that applied retroactively in the PCRA context. Commonwealth v. Rivera-Figueroa. 174 A.3d
674, 678 (Pa. Super. 2017). Substantive rules include those that prohibit a certain category of
punishment for a class of defendants based on their status or offense. Id. ( citations omitted). The
Superior Court relied particularly on Montgomezy v. Louisiana, 577 U.S._, 136 S. Ct. 718
(2016), which held that the United States Constitution required state collateral review courts to
give retroactive effect to substantive rules of constitutional law which control the outcome of cases.
Rivera-Figueroa, 174 A.3d at 678. The Superior Court also considered Montgomery's extension
of the holding of Miller v. Alabama, 567 U.S. 460 (2012), to the state collateral review context.
I
As explained by the Superior Court,
23
3_0pinion and Order
Montgomery he]d Mil1er announced a new substantive rule because it rendered
life without paro]e an unconstitutional penalty for a class of defendants because
of their status-that is.juvenile offenders whose crimes reflect the transient immaturity
of youth. Thus, the substantive ru]e in Miller retroactive]y applied in the collateral
context because there was a significant risk that a defendant faced a punishment
the Jaw cannot impose.
Rivera-Figueroa, 174 A.3d at 678 (intema] citations and quotation marks omitted).
Muniz similarly created a substantive ru]e that would apply retroactively in the collatera]
review context "because SORNA punishes a class of defendants due to their status as sex offenders
and creates a significant risk of punishment the law cannot impose." Id.
In the aftermath of Muniz, the General Assembly passed Act 10 of2018 (hereinafter, "Act
10")17 to address this, and related, decisions and to protect the people of the Commonwea1th by
"[p Jroviding for registration, community notification and access to information regarding sexually
violent predators and offenders who are about to be released from custody and will live in or near
I
their neighborhood." 42 Pa. C.S § 9799.5 l(b)(1)(4). In enacting this version of the sex offender
registration statute, the Legislature created two registration tracks - Subchapter H, 42 Pa. C.S. §§
9799.10-41, relating tti offenders whose crimes were committed on or after December 20, 2012,
and Subchapter I, 42 Pa. C.S. §§ 9799.51-75, relating exclusively to those whose offenses were
I
committed from April 22, 1996, through December 19, 2012. Subchapter H closely parallels
1
SORNA while Subchapter I principally tracks Megan's Law II with its provision of ten year or
Jifetime registration. Subchapter I also incorporates some provisions from SORNA.
"Subchapter I contains less stringent reporting requirements than Subchapter H.,,
Commonwea]th v. Alston, 212 A.3d 526, 529 (Pa. Super. 2019).
17 I
2018, Feb. 21, P.L. 27, No. 10, 42 Pa. C.S. §§ 9799,10-9799.75.
24
3_0pinion and Order
Subsequently, the Legislature enacted Act 2918 to replace Act 10. While Act 10 retained
the tier-based registration requirements for sex offenders, as well as the designation of certain
I
offenders as sexually violent predators, Act 29 eliminates tiers and requires sexual offenders to
register for either ten years or the offender's lifetime, depending upon the underlying offense. Id.
at § 9799.55(a), (b), Act 29 does not change Act lO's provisions regarding registration
requirements. As with Act 10, under Subchapter I of Act 29 SVPs are still required to report in
person quarterly. Id. at § 9799.60(a), although, subject to certain conditions, SVPs and other
lifetime registrants may petition for exemption from reporting after twenty-five years. Id. at §
9799 .59(a). Individuals subject to registration who fail to register are subject to prosecution. Id.
I -
at §§ 9799.56(d), 9799.60(d). While individuals subject to reporting requirements must inform
I
I
the Pennsylvania State Police within three days of changes in residence, place of employment or
I
educational institution, they are not required to do so in person. Id. at§ 9799.56(a)(2).
I
Additionally, until recently, SVPs and lifetime registrants were included for life, or until
I
exempted, on a publicly accessible website maintained by the Pennsylvania State Police, which
included the individual's name and aliases, year of birth, street address, school address, general
work location, photograph, physical description, license plate and vehicle description and the
offense for which the individual was convicted. Id. at § 9799.63(c), (d). The Superior Court,
however, determined that Section 9799.63 was punitive in effect, declared it unconstitutional, and
severed it from the remainder of the statute. Commonwealth v. Moore, • A.3d _, 2019 WL
5415854, No. 1566 WDA 2018 (Pa. Super. Oct. 23, 2019).
182018, June 12, P.L. 1952, No. 29, effective June 12, 2018.
25
3_0pinion and Order
In Alston, the Superior Court determined that, because the jury did not make a specific
finding as to the dates when the defendant committed his crimes, and because the defendant's
crimes straddled the operative dates ofSubchapters Hand I, the defendant was entitled to the lesser
I
reporting requirement of Subchapter I. Alston, 212 A.3d at 530. The same situation holds in the
present case in that the Commonwealth concedes that Defendant's criminal sexual conduct
siraddles the operative dates for Subchapters H and I and the jury did not make a specific finding
I
as to the dates on which they occurred. Although the Commonwealth urges that the lower
reporting requirements of Subchapter I should, therefore, be applied, the court deems it necessary
to consider whether retroactive application of Act 29, like SORNA, should be deemed to be
unconstitutional as violative of the Ex Post Facto provisions of the United States Constitution and
the Pennsylvania Constitution. Recognizing the effect of the Superior Court decision in Moore,
however, the court obslrves that, even if it determines that Subchapter I of Act 29 applies,
Defendant cannot be required to expose his personal information to public scrutiny on the
Pennsylvania State Police website.
Determining whe�er Act 29, like SORNA, violates the federal prohibition against ex post
two-step
facto laws involves a analysis which considers whether the Legislature's intent was
I
punitive and, if not, whether the statute's effect or purpose is so punitive as to negate the stated
I
non-punitive intent. Muniz, 164 A.3d at 1208. Accepting the Legislature's explicit statement
that Act 29 is non-punitive, and recognizing the changes made from SORN A, the question remains
whether the punitive effect of Act 29 is great enough to overcome the statement of legislative intent
to the contrary and require the Court to determine that Act 29 is an unconstitutional ex post facto
law. In analyzing this question, the Court remains mindful that there is a general presumption that
26
3_0pinion and Order
lawfully enacted statutes are constitutional, Muniz. 164 A.3d at 1195, and that "only the 'clearest
proof may establish that a law is punitive in effect," id. at 1208.
To determine a statute's punitive effect, the U.S. Supreme Court set out seven factors for a
court to consider:
[w]hether the sanction involves an affirmative disability or restraint, whether
it has historically 1 been regarded as a punishment, whether it comes into play
only on a finding of scienter, whether its operation will promote the traditional
aims of punishment-retribution and deterrence, whether the behavior to which
it applies is already a crime, whether an alternative purpose to which it may
rationally be connected is assignable for it, and whether it appears excessive
in relation to the alternative purpose assigned.
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963).
These factors were subsequently employed by the U.S. Supreme Court in holding Alaska's
Sex Offender Registration Act non-punitive in Smith v. Doe, 123 U.S. 1140 (2003), and adopted
I
by the Pennsylvania Supreme Court to hold Megan's Law II non-punitive in Williams II, 832 A.2d
I
962 (Pa. 2003).
The PennsylvaniJ Supreme Court has recognized that two of these factors, whether the
statute comes into play ohiy on a finding of scienter and whether the behavior to which the statute
applies is already a crime, are of little significance in assessing a sex offender registration statute.
I
Muniz. 164 A.3dat 1213-14, 1216 (citing Smith. 538 U.S. at 105). While the remaining Mendoza-
Martinez factors will be addressed sequentially, the court remains cognizant of the recent opinion
I
in Moore. There, a panel of the Superior Court held the internet dissemination provisions of Act
I .
29, 42 Pa. C.S. § 9799.63, to be punitive in effect and deemed retroactive application of those
I
provisions to violate the federal Ex Past Facto Clause. That said, the panel also found the
offending section to be severable from the remainder of the statute and affirmed the appellant's
27
3_0pinion and Order
judgment of sentence while directing that appellant's entry was to be removed from the
I
Pennsylvania State Police website. The Moore panel explicitly stated that the appellant presented
Jo
only a narrow challenge the manner in which sex offender information was disseminated and did
re�istrationandreporting
not challenge Act 291s requirements.19 Moore, 2019 WL 5415854 at *2
n.3. As a consequence, the Superior Court panel specifically applied the Mendoza-Martinez
factors "solely to the dissemination provisions of [Act 29]." and it was, therefore, unnecessary to
consider "the duration of an offender's registration, or whether the statute required in-person
reporting and how often, 1or other provisions not required by Section 9799.63." Id. at *5 n.6. This
limitation in the scope of the panel's analysis would seem to render any further broad
pronouncements regarding the constitutionality of any retroactive application of Act 291s
I
registration and reporting requirements as dicta. Because Defendant here is raising a broad
I
challenge to the application of Act 29, and because the court has broader concerns regarding the
other provisions of Act 29, it is necessary to undertake a fuller examination of the statute even
I
though the provisions for internet dissemination have played a major role in the analyses of sex
offender registration staJtes undertaker.by Pennsylvania's courts hereto.
I
1. Affirmative disability or restraint
l
In Williams II, the Pennsylvania Supreme Court found that the registration and notification
I
requirements of Megan's Law II did not constitute an affirmative disability or restraint. Although
sexually violent predators might be denied certain employment as a consequence of public
I
notification, such restrictions were in direct furtherance of compelling govenunental interests.
19
In Moore, the Superior Court referred to the applicable statutory provisions as "SORNA II." For
internal consistency, the court refers to such provisions herein as "Act 29."
28
3_0pinion and Order
Further, any disabilities imposed upon sexually violent predators were potential collateral restraints
flowing solely from the secondary effects of registration and notification. In contrast, in Muniz,
the Supreme Court in considering SORNA aligned with the defendant on this factor. Observing
that the defendant, a Tier Ill SORNA offender, would have to report in person a minimum of 100
extending
times over 25 years and beyond that for the rest of his life, and that homeless offenders
I
would have to report 300 times over that same period, the Supreme Court found that the statute's
in-person reporting requirements were a direct restraint upon the defendant. Muniz, 164 A.3d at
I
The Commonwealth maintains that, under Act 29, this factor weighs against finding the
statute to be punitive in nature. Subchapter I of Act 29 requires offenders other than sexually
violent predators and homeless offenders to appear in person only once per year to complete a
verification form and to be photographed. 42 Pa. C.S. § 9799.60(b). Further, while all offenders
must inform the Pennsylvania State Police of changes in residence, changes of employment, and
changes of educational iJstitution or location, 42 Pa. C.S. § 9799.56(2), such notifications need not
I
be made in person. Additionally, all offenders are eligible to apply for exemption from reporting
and notification requirejents after twenty-five years. 42 Pa. C.S. § 9799.59(a). Based on these
I
provisions, the Commonwealth asserts that Act 29 satisfies the analysis done by the United States
Supreme Court in evaluating this factor with respect to Alaska's sex offender registration statute in
that it imposes no physical restraint, does not restrain the activities sex offenders may engage in,
and, while it requires thJm to report changes in jobs and residences, it does not require them to
I
obtain permission for such changes.
29
3_0pinion and Order
However, five years after the United States Supreme Court in Smith found that Alaska's sex
offender registration statute comported with the federal constitution, the Alaska Supreme Court
held that it violated the Alaska constitutions' ex postfacto provisions. Doe v. State of Alaska. 189
2008))
P.3d 999 (Alaska In so doing, the Alaska court found that the statute imposed a direct
restraint even though it did not require in-person reporting, stating that the statute "impose]s]
significant affirmative obligations and a severe stigma on every person to whom (it] appl(ies]."
I
Doe, 189 P.3d at 1009 (quoting Smith, 538 U.S. at 111 (Stevens, J. dissenting)). In particular, the
court found that the statute compelled offenders, under threat of prosecution, ''to contact law
enforcement agencies and disclose information, ... some of which is otherwise private, most of it
for public dissemination." Id.
While sexually violent predators are still required to report quarterly and homeless offenders
are still required to report monthly, these requirements do not apply to Defendant as he has not been
determined to be a sexually violent predator and there is no indication that he is homeless. In
changing the reporting requirements for some offenders and doing away with the need for additional
in-person reporting for certain matters, Act 29 has thus reduced the penalties on offenders like
Defendant. While any offenders who fail to register or to provide notification of change of
residence as required are subject to prosecution, 42 Pa. C.S §§ 9799.56(d), 9799.60(d),(e), this
possibility would arise only as a result of a failure to satisfy those less rigorous reporting
requirements.
That said, the reporting requirements are still subject to the same criticism as was applied
to the Alaska statute in Doe. Even acknowledging that the internet dissemination provisions are
no longer relevant under Moore, the reporting and registration requirements still compel offenders
30
3_0pinion and Order
to contact the Pennsylvania State Police under threat of prosecution, whether in person or otherwise,
and to disclose personal information. Further, the stigma attached to being compelled to register
as a sex offender still cannot be avoided as the statute is currently constituted. The statute declares
I
a legislative finding that "sexually violent predators and offenders pose a high risk of engaging in
further offenses even aftJr being released from incarceration or commitments .... " 42 Pa. C.S. §
9799.5l(a)(2). Thus, every individual placed on the registry for whatever offense is stigmatized
as a likely recidivist. Even with the modification from the prior version of the statute, Act29 still
serves as a direct restraint, which weighs in favor of finding the statute punitive.
II. Historically considered punishment
In Muniz. the P1nnsylvania Supreme Court acknowledged that the Smith majority had
distinguished colonial era public shaming punishments from sex offender registration statutes,
finding that public shaming involved more than just the dissemination of information. Further,
I
the publicity and stigma resulting from the dissemination of an offender's information was not
integral to the objective of the regulatory scheme. Muniz, 164 A.3d at 1212. The Muniz Court,
I
however, noted that Smith was decided in an era in which the internet was less pervasive.
Yesterday's faceJo-face shaming punishment can now be accomplished online, and
an individual's presence in cyberspace is omnipresent. The public internet website
utilized by the Pennsylvania State Police broadcasts worldwide, for an extended
period of time, the personal identification information of individuals who have
served their sentences. This exposes registrants to ostracism and harassment
without any mechbism to prove rehabilitation-even through the clearest proof.
Id. (quoting CommonwJatth v. Perez, 97 A.3d 747, 765-66 (Pa. Super. 2014) (Donohue, J.
concurring)).
In light of this, Muniz found SORNA's publication requirements akin to shaming. While
l
this determination is made moot by Moore, Muniz also found that the requirements of SORNA
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3_0pinion and Order
were akin to probation which has historically been regarded as a form of punishment.
Probation entails a set of mandatory conditions imposed on an individual ...
released after serving a prison sentence, or ... sentenced to probation in lieu of
prison . . . . These conditions can include psychiatric treatment, limitations on
travel, and notifying a probation officer when any change of employment or
residency occurs. Probationers are also subject to incarceration for a violation of
any condition of their probation.
I
Id. at 1213 (quoting Perez, 97 A.3d at 763-64 (Donohue, J. concurring)) (citations omitted).
I
SORNA similarly required offenders to notify the Pennsylvania State Police of changes in
employment or residence and threatened them with incarceration for violating the statutory
I
requirements. Additionally, while the Commonwealth argues that the process of incarcerating a
I
defendant for non-compliance with registration requirements differs significantly from the process
l
of incarcerating a defendant for a probation violation, Muniz found violations for noncompliance
I
with both probation and SORNA registration requirements to be procedurally parallel in that each
required further factual findings to determine whether a violation had occurred and in both
situations an individual would not be subject to the mandatory requirements but for the original
I
underlying offense. Id. Similarly, under Act 29 a defendant would only be subjected to the
mandatory reporting requirements if he or she had been determined to be a sex offender or a
I
sexually violent predator! and further fact finding would be needed to determine whether such a
person had violated the reporting and notification requirements. This factor would also weigh in
favor of finding Act 29 tj be punitive.
III. Promotes traditional aims of punishment
I
The traditional aims of punishment are deterrence and retribution. The Supreme Court
I
stated in Muniz that "the prospect of being labeled a sex offender accompanied by registration
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3_0pinion and Order
requirements and the public dissemination of an offender's personal information over the internet
has a deterrent effect." I Id. at 1215. However, as the Supreme Court recognized, "the mere
presence of a deterrent prose does not render such sanctions criminal." Id. (quoting Smith, 538
U.S. at 102) (internal quotation marks omitted). Because SORNA included as crimes requiring
I
registration a number of predicate offenses which lacked a sexual component or did not require
substantial periods of incarceration.P the Supreme Court determined that the statute clearly aimed
at deterrence.
In contrast to SORNA, the crimes in Subchapter I of Act 29, addressing SVPs and other
I
lifetime registrants, are nearly all felonies with sexual components with substantial maximum terms
of imprisonment. The Commonwealth, therefore, argues that the court should be guided by the
I
I
analysis in Williams II in which the Supreme Court found that the registration, notification and
I
counseling provisions of Megan's Law II were unlikely to have even a marginally deterrent effect
on an offender given the substantial terms of incarceration attached to predicate offenses.
I
Williams II, 832 A.2d at 978.
I
Even accepting, however, that the predicate offenses involve potentially substantial terms
of incarceration, the fact' remains that the reporting requirements imposed as a result could often
exceed an individual's term of incarceration. With respect to the offenses in Defendant's case,
Unlawful Contact with a inor is graded as a felony of the third degree, 18 Pa. C.S. § 6318(b)(2),
1
for which the maximum sentence would be seven years imprisonment, 18 Pa. C.S. § 106.
1
20 I
By way of illustration, under SORNA, interference with custody of children, 18 Pa. C.S. § 2904, a
second degree misdemeanor with no sexual component, was a Tier I offense requiring 15 years registration. See
Muniz, 640 Pa. at 743, 164 A.3d at 1215.
I
33
3_0pinion and Order
Solicitation for the purpose of promoting or facilitating Sexual Abuse of Children, 18 Pa. C.S. §§
902(a), 6312(b), is graded as a felony of the second degree, 18 Pa. C.S. § 905(a), with a maximum
term ofimprisonment often years. Being required to register for a period of ten years would mean
Defendant had to register for a period equal to the maximum sentence for Defendant's one offense
and greater than the maximum sentence for the other. In light of this, it would be difficult to
accept that Act 29 lacks deterrent effect since it also exposes an individual to the same undesirable
prospects of being labeled a sex offender and being compelled to register for an extended period of
I
time after completing a term of imprisonment.
The Supreme Court in Williams II further found that any retributive effect of the statute was
ancillary to the statute's stated goals and that this weighed against the statute being punitive. 832
I
A.2d at 978. In Muniz, however, the Supreme Court recognized that "[rjetribution, in its simplest
I
terms 'affix[es] culpability for prior criminal conduct,' and in fact, SORNA is applicable only upon
a conviction for a predidate offense." Id., 164 AJd at 1215 (citations omitted). While Act 29
addresses deficiencies the Supreme Court recognized with respect to SORN A, including non-felony
I
and non-sex offenses, the comments of the Muniz Court with respect to the deterrent effect of
I
registration seem no less valid. Further, while Moore addresses the effects of dissemination of an
offender's information, Act 29, like SORNA, is also only applicable upon a conviction for a
predicate offense and thus falls within the definition of retribution.
Because it exposes an individual to the undesirable prospects of being labeled a sex offender
and being compelled to register as such, it would be difficult to view Act 29 as lacking a deterrent
or retributive effect. Act 29 also exposes an individual to a longer term of punishment than would
be expected from even � substantial term of imprisonment. Taken together, these effects are
34
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3_0pinion and Order
enough to weigh in favor of the statute being punitive.
IV. Alternative purpose
In Muniz. it was conceded that this factor weighed in favor of finding SORNA non-punitive
because there was a rational connection to public health and safety. 164 A.3d at 1216. In
particular, the statute was intended to address issues of recidivism and to respond to the federal
mandate to protect the public against sex offenders. Id. at 1216-17.
The Court accepts that the same alternative purposes are relevant to Act 29 and weigh in
favor of finding it non-punitive. At the same time, it is worth noting that the Alaska Supreme
Court, in finding that state's sex offender registration statute unconstitutional, observed that "if
recidivism ... were the only concern, the statute would apply not just to convicted sex offenders
but to other individuals who may pose a threat to society even if they were not convicted." Doe.
189 P.3d at 1014 (citing as examples statutes from Washington and Utah which included in the
registration requirement individuals found not guilty by reason of insanity or found incompetent to
stand trial).
V. Excessive in relation to the alternative purpose
In Muniz, the Supreme Court found SORNA to be excessive because there was no way for
individuals deemed sexually violent predators to escape lifetime registration by demonstrating they
no longer posed a substantial risk to the community and because the statute was over-inclusive in
that it included minor and non-sexual offenses in the sex offender registry. 164 A.3d at 1217-18.
These specific issues have been addressed in Act 29 which includes almost exclusively sex based
offenses and which allows an individual to seek exemption from reporting after 25 years. One
trial court assessing the exemption requirements found the process for obtaining an exemption to
35
3_0pinion and Order
be "largely fanciful." Commonwealth v. Carpenter, No. CR-192-2017 (Lycoming County Ct.
Com. Pl. 2017) (specifically addressing Act 10).
A registrant must file a petition seeking removal after 25 years of registration. A
registrant may petition the trial court for exemption ... only if he is not convicted
of an offense punishable by more than one year in jail, or after commencement of
his registration dr release from custody, whichever is later. Lastly the offender
must be assessed by the Sexual Offender Assessment Board and prove to a court by
clear and convincing evidence that he is not likely to pose a threat to the safety of
any other person .... Indeed, the court cannot foresee one being designated as an
SVP and meeting the established criteria, and 25 years later proving the negative.
Id. at 7.
Accordingly, Act 10 would be excessive under the Muniz analysis and this factor weighs in
favor of finding the statute punitive. Act 29, containing the identical provision, would be similarly
punitive as related to offenders required to register for life.
While not relevant in this case because Defendant is a lifetime registrant under Act 29, the
fact that the statute would grant lifetime registrants the possibility, however remote, of exemption
from reporting, the exemption requirements would not even apply to offenders required to register
for ten years. After that ten-year period, such an offender would be removed from the registry,
but it would be impossible for him to obtain exemption prior to the end of his registration period
and unnecessary for him to seek exemption after twenty-five years. There would be no way for
such an individual to seek removal from the registry prior to the expiration of his full registration
period. This inability to seek exemption from the registration period based on proof that an
offender is no longer a danger would also Act 29 excessive.
Ultimately, four of the five factors analyzed in Muniz weigh in favor of Act 29 being
punitive-it involves affirmative disabilities or restraints, its sanctions have been traditionally
viewed as punishment, its application promotes the traditional aims of punishment, including
36
3_0pinion and Order
deterrence and retribution, and it is excessive in relation to any alternative purpose. These are
enough to find that Act 29, like SORNA, fails to meet Constitutional muster. The court, therefore,
must reject the Commonwealth's argument that the revised law renders Defendant's registration
requirements non-punitive and constitutional. While the stated goal of protecting the public from
sex offenders by providing for registration and community notification is an admirable one, the
Commonwealth must still do more to reduce the punitive effect of the requirements it seeks to
impose on such individuals.
The Commonwealth argues that Defendant would suffer no increased punishment should
this court subject him to the requirements of Act 29 of 2018. The Commonwealth's argument in
this regard fails. Initially, the Commonwealth's presented analysis is predicated on a comparison
between Megan's Law III and Act 29. Such analysis is flawed as Megan's Law III was declared
unconstitutional in its entirety ab initio as the enactment violated the single subject rule. Nieman,
84 A.3d 603. Additionally, based on the above analysis, the punitive restraints imposed by Act
29 are not limited to the duration of any period of registration and notification.
The Commonwealth further contends that the Defendant lacks standing to assert any
challenge to Act 29 and that any opinion offered by this court regarding the constitutionality of any
retroactive application of the Act would amount to an improper advisory opinion. This argument
lacks merit. Defendant is presently serving an aggregate sentence of not less than twenty-two
years nor more than fifty years incarceration and has been subjected to the registration requirements
imposed by the Sexual offender Registration and Notification Act. Based upon the implications
of Muniz and Alston, as addressed, Defendant, as presently situated, would be subject to an
unconstitutional ex postfacto retroactive application of such statutory provision.
37
3_0pinion and Order
APPLICABLE REGISTRATION REQUIREMENTS
Although making such determination, this is not to say that Defendant is not required to
register as a sex offender. As noted above, in this matter, although the Commonwealth contended
that defendant's course of conduct stretched from December I, 2012, through October 14, 2014,
the Commonwealth has conceded that there was no specific finding by the jury as to when the
offenses occurred. (CommonweaJth Memorandum, July 22, 2019). Megan's Law III, which has
been found to be unconstitutional ab initio, would have otherwise been in effect until December
12, 2012, at which time SORNA became effective.21
The Pennsylvania Supreme Court has stated that "where ... an act expressly repeals another
act and provides a substitute for the act repealed and the substitute is found unconstitutional," the
repealed act will not be accepted as repealed unless it appears the Legislature would have repeaJed
it even without providing a substitute. Mazurek v. Farmers' Mut. Fire Ins. Co .• 320 Pa. 33, 37-
38, 181 A. 570, 572-73 ( 1935). With respect to sex offender notification statutes, the Legislature
did not indicate an intent to repeal the sex offender registration requirements as it enacted a
substitute for Megan's Law II by enacting Megan's Law III in 200422 and a substitute for Megan's
Law III when it enacted SORNA in 2012. Thus, the prior law, that is the last prior law not held
21
Megan's Law Ill expired on December 12, 2012, the date on which SORNA became effective.
Subsequently, the Pennsylvania supreme Court held that Megan's Law III violated the single subject rule of the
Pennsylvania Constitution and was unconstitutional in its entirety ab initio. Commonwea)thy, Nieman. 84 a.3d
603 (Pa. 2013). SORNA is unconstitutional as an ex post facto law to the extent that its retroactive application
increases a defendant's punishment. See Muniz.
22
The Supreme Court has gone so far as to acknowledge that the Legislature "made ... amendments to
Megan's Law II with the passage of ... Megan's Law III." Muniz. 640 Pa. at 713, 164 A.3d at 1197. The
Supreme Court recently reiterated this point in �ommonwealth v. D�rhammer, 643 Pa. at 395 n.4, 173 A.3d at 725
n.4 (citing Muniz and stating "Megan's Law III did not completely repeal and replace Megan's Law 11; rather it
made significant changes to Megan's Law 11").
38
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3_0pinion and Order
unconstitutional, Megan's Law II, will not be treated as repealed. Megan's Law II did not provide
for tier-based registratiod, but rather provided for ten-year registration or lifetime registration based
upon the underlying crime. 42 Pa. C.S. § 9795.1.
In Commonwealth v. Horning, 193 A.3d 411 (Pa. Super. 2018), a defendant who committed
offenses of rape and involuntary deviate sexual intercourse between 2002 and 2004, but was not
charged until his minor victim disclosed the crimes in 2016, was required to become a lifetime
registrant under SORNA when he pied guilty in 2017. The Superior Court held that even though
application of SORNA would not increase the length of an offender's registration from that under
Megan's Law II, which was in effect at the time he had committed his crimes, it would still increase
I
his punishment because the registration requirements under SORNA were more onerous than those
under Megan's Law II and the defendant, therefore, could not be compelled to register under
SORNA. The Superior Court noted, however, that ''this does not preclude [the defendant] from
having to register as a sexual offender under Megan's Law II." Id. at 417 n.3. In the case of
Rape of a Child, Megan's Law II provided for lifetime registration. 42 Pa. C.S. § 9795.l(b)(2).
Defendant, therefore, is required to register for life under the terms of Megan's Law II.
For the reasons stated above, the court enters the following:
39
3_0pinion and Order
IN THE COURT OF 1COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CRIMINAL
COMMONWEALTH OF PENNSYLVANIA
vs. No. 0848 -2015
RAMON LUIS JUSINO, JR.
ORDER
AND NOW, this 12th day of November 2019, upon consideration of Defendant's
Amended Petition for Post-Conviction Collateral Relief, it is ordered that:
1. Defendant's Amended Petition is DENIED with respect to the claims of ineffective
assistance of counsel.
2. Defendant's Amended Petition is GRANTED with respect to the claim that his
sentence is illegal. Defendant shall be subject to Megan's Law II and required to register for his
lifetime based on the underlying offenses.
Attest:
Copies to: James Reeder, Esquire, Assistant District Attorney
Dennis C. Dougherty, Esquire, counsel for Defendant
---�