Com. v. Muhammad, T. ( 2020 )

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2020 PA Super 256COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
TANISHA MUHAMMAD
Appellant No. 1455 MDA 2018
Appeal from the Judgment of Sentence Entered July 20, 2018
In the Court of Common Pleas of Berks County
Criminal Division at No: CP-06-CR-0004248-2016
BEFORE: PANELLA, P.J., STABILE, J., and MUSMANNO, J.
OPINION BY STABILE, J.: FILED OCTOBER 23, 2020
Appellant, Tanisha Muhammad, appeals from her judgment of sentence
for interference with custody of children, false imprisonment, unlawful
restraint, and conspiracy to commit these offenses.1 Based on Appellant’s
convictions for interference with custody of children (“interference”) and
conspiracy to interfere with custody of children (“conspiracy”), the trial court
ordered Appellant to register as a sexual offender under Revised Subchapter
H of the Sexual Offenders Registration and Notification Act (“SORNA”), 42
Pa.C.S.A. §§ 9799.10—9799.42,2 as a Tier I offender. We hold that SORNA
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1 18 Pa.C.S.A. §§ 2902(a), 2903(a), 2904, and 903, respectively. The counts
for false imprisonment and conspiracy to commit false imprisonment merged
for purposes of sentencing.
2SORNA was enacted in 2011 and became effective on December 20, 2012.
Through Acts 10 and 29 of 2018, the General Assembly split Subchapter H of
SORNA into a Revised Subchapter H and Subchapter I. Subchapter I
addresses sexual offenders who committed an offense on or after April 22,
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is unconstitutional as applied to Appellant, because it creates an irrebuttable
presumption that her convictions for interference and conspiracy make her a
risk to commit additional sexual offenses. Accordingly, we vacate the trial
court’s order directing her to register as a sexual offender. Otherwise, we
affirm the judgment of sentence.
The trial court summarized the evidence against Appellant as follows:
Khalid Muhammad (“Khalid”) and Angelita Rodriguez (“Angelita”)
shared a three-year-old child, Pharaoh Samir Rodriguez
(“Pharaoh”) at the time of the incident. Angelita also had a 17-
year-old daughter, Liajah Rodriguez (“Liajah”). As of January 7,
2014, pursuant to a valid custody order, Angelita was to have
primary physical custody of Pharaoh and Khalid was to have
partial physical custody of Pharaoh from Friday between noon and
1 P.M. until Sunday 4 P.M. and 5 P.M. Both parties had written
notice that if any party feels that another party has violated this
order, they were to petition the Court as set forth in Pa.R.C.P.
1915.12. While Angelita was incarcerated between April of 2015
and June of 2016, Pharaoh was in the care of Khalid. After being
released from incarceration, Angelita contacted Khalid so that she
could see Pharaoh and spend time with him. Upon agreement,
Angelita picked Pharaoh up from Khalid in Philadelphia. Angelita
agreed with Khalid that she would return Pharaoh to Khalid on
Sunday, August 14, 2016. However, Angelita, upon finding some
bruises on Pharaoh, told Khalid that she knew that the bruises
were from Khalid and that she was not going to return Pharaoh.
On Monday, August 15, 2016, approximately at 2:36 P.M., Liajah,
was at the front steps of 111 Orange Street, Reading, PA, with
Pharaoh. Soon after, a silver Kia, pulled over down the block and
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1996, but before December 20, 2012. See 42 Pa.C.S.A. §§ 9799.51-9799.75.
Revised Subchapter H, which applies to offenders such as Appellant who
committed an offense on or after December 20, 2012, contains stricter
requirements than Subchapter I. See 42 Pa.C.S.A. §§ 9799.10-9799.42. All
references to “SORNA” in this opinion are to Revised Subchapter H. For an
exhaustive summary of SORNA’s legislative history, see Commonwealth v.
Mickley, —A.3d—, 2020 Pa. Super. 233, n. 3 (Pa. Super., Sep. 24, 2020).
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Khalid stepped out of the vehicle. Khalid then picked up Pharaoh
and tried to put Pharaoh on to the vehicle. Liajah engaged in a
struggle with Khalid in attempt to get Pharaoh back. Jose Mejia
also entered the struggle to help Liajah. Lisa Walker (“Lisa”) and
Tanisha Muhammad (“Appellant”), Khalid’s sister, then came out
from the vehicle and pulled Liajah away from the vehicle in order
to prevent Liajah from getting near Pharaoh. After Pharaoh was
placed in the vehicle and the door of the vehicle was shut,
Appellant went back to the driver’s seat.
Liajah opened the door of the vehicle and attempted to remove
Pharaoh from the vehicle. After series of struggles, Lisa pulled
Liajah [i]nto the vehicle. As a result of these struggles, Liajah
suffered several bruises on her arm and chest, and her t-shirt was
ripped. Pharaoh suffered a bump in his head and some scratches
on his back.
Appellant drove off from 111 Orange Street while Pharaoh was
placed on her lap. Liajah asked the Appellant and Lisa to let her
out which the Appellant refused to do. While Appellant was driving
through Cotton Street, Liajah opened the door of the vehicle and
started to yell out for help. While the door was open, Lisa
attempted to push Liajah out of the moving vehicle. After Liajah
managed to hang on, Lisa rolled up the windows and locked it.
Appellant told Liajah that she and Pharaoh are not going back
home.
After the Reading Police weres informed of the incident at 111
Orange Street, Criminal Investigator Sweitzer (“C.I.”) attempted
to contact Appellant numerous times. At one point, Appellant
finally answered the phone. When the C.I. asked to turn around
the vehicle and come back, Appellant told the C.I. that she was
not going to do that. The C.I. asked to speak to Liajah to ensure
her safety and Pharaoh’s, but the Appellant refused to put Liajah
on the phone and hung up the phone. Appellant did not respond
to any further calls from the C.I.
Appellant pulled into Chestnut Hill train station where Khalid’s
mother (“Bonnie”), and Ebony, Khalid’s sister, in a vehicle, pulled
up next to Appellant. Bonnie took Pharaoh out of the silver Kia
and placed Pharaoh onto the other vehicle, where thereafter
Ebony drove off with Pharaoh. Bonnie then got in to the front seat
of the silver Kia. Appellant then stopped at a store where Bonnie
and Liajah entered the store and bought a shirt and sandals for
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Liajah. Then, Appellant dropped Liajah off at the Center City
Greyhound Station in Philadelphia, where Bonnie took Liajah
inside the station and bought Liajah a bus ticket to Reading. When
Bonnie left with Appellant, Liajah asked a lady to use her phone
and contacted her mother, Angelita. Liajah told Angelita where
she was and what had happened. Angelita told Liajah that she
had called the police and she was to wait for the police at the bus
station. Liajah was too scared and got on to the bus headed for
Reading, PA. At the first stop, police officers found Liajah and she
was escorted back to the local police station. Soon after, the
Reading Police picked Liajah up at the station and brought her
back to Reading at nighttime of August 15, 2016.
On August 16, 2016, Bonnie called Angelita so that she could
return Pharaoh back to Angelita. Bonnie instructed Angelita to
meet at the intersection of Broad Street and another street in
Philadelphia. After Angelita and C.I. waited for a while, at around
8:30 P.M., Bonnie arrived at the location and returned Pharaoh to
Angelita.
Trial Court Opinion, 11/13/18, at 3-5 (with some minor grammatical revisions)
(references to notes of trial testimony).
Following a bench trial, the court found Appellant guilty of the offenses
listed above. These appear to be Appellant’s first and only criminal offenses.
N.T., 7/20/18, at 24 (Appellant’s prior record score is zero); id. at 34 (court’s
acknowledgement that these offenses were “totally out of character” for
Appellant based on the presentence investigation).
Prior to sentencing, Appellant served the court a memorandum raising
a series of constitutional challenges to SORNA, including an argument that
SORNA violates Appellant’s right to reputation under the Due Process Clause
of the Pennsylvania Constitution by creating an irrebuttable presumption that
she is a high risk to commit another sexual offense. At sentencing, counsel
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entered this memorandum into the record and argued that SORNA is
unconstitutional “as it applies to [Appellant].” N.T., 7/20/18, at 4. The court
responded, “[I] am in no position to hold here that [SORNA] is unconstitutional
as applied to [Appellant], and I will not do so.” Id. at 4-5. Appellant
acknowledged filling out a form notifying her of her requirement to register
under SORNA for her convictions for interference and conspiracy. Id. at 39-
40. This form was admitted into the record.3 The court sentenced Appellant
to three to twenty-three months’ imprisonment.
Appellant filed timely post-sentence motions, which the court denied,
and a timely notice of appeal. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant raises the following issues in this appeal:
1. Whether the registration requirements of SORNA are
unconstitutional and violated [Appellant]’s rights under the
Pennsylvania and United States constitutions in that SORNA
denied [Appellant] procedural due process under Article I and XI
of the Pennsylvania Constitution because it created an irrebuttable
presumption that those convicted of enumerated offenses “pose a
high risk of committing additional sexual offenses” depriving those
individuals of the fundamental right to reputation.
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3 The court did not direct that Appellant’s convictions for the Tier I offenses of
false imprisonment and unlawful restraint required her to register under
SORNA. Such a finding would have been invalid. SORNA does not require
registration for unlawful restraint or false imprisonment unless they are
graded as felonies. See 42 Pa.C.S.A. § 9799.14(b)(1), (2) (registration as
sex offender required for felony unlawful restraint (18 Pa.C.S.A. § 2902(b))
and felony false imprisonment (18 Pa.C.S.A. § 2903(b)). Appellant’s
convictions were under the misdemeanor subsections of the unlawful restraint
and false imprisonment statutes, 18 Pa.C.S.A. §§ 2902(a) and 2903(a),
respectively, and thus fell outside SORNA’s purview.
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2. Whether SORNA denied [Appellant] procedural due process
under Article [I], Section 1 of the Pennsylvania Constitution
because it unlawfully restricts liberty and privacy without notice
and an opportunity to be heard.
3. Whether SORNA violates substantive due process under the
state and federal constitutions because SORNA deprives
individuals of inalienable rights and fails to satisfy strict scrutiny.
4. Whether SORNA constitutes criminal punishment and therefore
violates the separation of powers doctrine because it usurps the
exclusive judicial function of imposing a sentence.
5. Whether SORNA contravenes the 5th, 6th and 14th
Amendments of the United States Constitution and the
corresponding protections of the Pennsylvania Constitution
because as a criminal punishment, SORNA cannot be imposed
without due process, notice and opportunity to contest its
imposition, and ensuring that each fact necessary to support
imposition of mandatory sentences is submitted to a jury and
proven beyond a reasonable doubt.
Appellant’s Brief at 15-16.
We find Appellant’s first argument dispositive of this appeal. SORNA
declares that “[s]exual offenders pose a high risk of committing additional
sexual offenses and protection of the public from this type of offender is a
paramount governmental interest.” 42 Pa.C.S.A. § 9799.11(a)(4). Appellant
contends that both on its face and as applied to her, SORNA violates her right
to reputation under Article I, Section 1 of the Pennsylvania Constitution4 by
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4 Article I, Section 1 of the Pennsylvania Constitution, Pennsylvania’s due
process clause, provides, “All men are born equally free and independent, and
have certain inherent and indefeasible rights, among which are those of
enjoying and defending life and liberty, of acquiring, possessing and
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creating an irrebuttable presumption that she poses a high risk of committing
additional sexual offenses.
Appellant’s constitutional challenge is a question of law for which our
standard of review is de novo and our scope of review is plenary.
Commonwealth v. Torsilieri, 232 A.3d 567 (Pa. 2020). When addressing
constitutional challenges to legislative enactments, we recognize that “the
General Assembly may enact laws which impinge on constitutional rights to
protect the health, safety, and welfare of society,” but also that “any
restriction is subject to judicial review to protect the constitutional rights of all
citizens.” In re J.B., 107 A.3d 1, 14 (Pa. 2014). A party challenging a statute
“must meet the high burden of demonstrating that the statute clearly,
palpably, and plainly violates the Constitution.” Id.There are two types of constitutional challenges, facial and as-applied.
Commonwealth v. Brown, 26 A.3d 485, 493 (Pa. Super. 2011). A facial
attack tests a law’s constitutionality based on its text alone without
considering the facts or circumstances of a particular case. Id. The court
does not look beyond the statute’s explicit requirements or speculate about
hypothetical or imaginary cases. Germantown Cab Company v.
Philadelphia Parking Authority, 206 A.3d 1030, 1041 (Pa. 2019). An as-
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protecting property and reputation, and of pursuing their own happiness.”
(Emphasis added.)
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applied attack on a statute is more limited. It does not contend that a law is
unconstitutional as written, but that its application to a particular person under
particular circumstances deprives that person of a constitutional right.
Brown, 26 A.3d at 493. “[W]hile as-applied challenges require application
of the ordinance to be ripe, facial challenges are different, and ripe upon mere
enactment of the ordinance.” Philadelphia Entertainment &
Development Partners v. City of Philadelphia, 937 A.2d 385, 392 n. 7
(Pa. 2007). It is permissible to raise both facial and as-applied challenges to
a statute. Id. (addressing both facial and as-applied challenges to tax
ordinance). In this appeal, Appellant raises both types of challenges to
SORNA’s “high risk” text.
SORNA was enacted in 2011 and became effective on December 20,
2012. As stated above, SORNA prescribes that “[s]exual offenders pose a
high risk of committing additional sexual offenses[.]” 42 Pa.C.S.A.
§ 9799.11(a)(4). Based on this presumption, SORNA requires the State Police
to maintain a statewide registry of sexual offenders that lists substantial
information concerning the offenders. 42 Pa.C.S.A. § 9799.16. Further, the
State Police must disseminate this information to the public through a website
that is searchable by “any given zip code or geographic radius set by the user.”
42 Pa.C.S.A. § 9799.28. At sentencing, the trial court must, inter alia, inform
a sexual offender of the offender’s duty to register and require the offender to
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read and sign a form stating that the duty to register under this subchapter
has been explained. 42 Pa.C.S.A. § 9799.23(a).
SORNA defines a sexual offender as “an individual who has committed
a sexually violent offense[.]” 42 Pa.C.S.A. § 9799.12. There are three tiers
of sexually violent offenses. 42 Pa.C.S.A. § 9799.14. Tier I includes the least
serious offenses and requires annual reporting for fifteen years. 42 Pa.C.S.A.
§ 9799.15(b). Tier II offenders must report semiannually for twenty-five
years, and Tier III offenders must report quarterly for their lifetimes. Id., §
9799.15(c, d). Appellant’s offenses of interference and conspiracy are Tier I
offenses requiring her to register as a sex offender for fifteen years. 42
Pa.C.S.A. § 9799.15(b).
Because our Supreme Court has declined to “pigeonhole” an irrebuttable
presumption challenge as a procedural or substantive due process challenge,
Torsilieri, 232 A.3d at 581, we address this claim simply as an “irrebuttable
presumption” challenge. An irrebuttable presumption is unconstitutional when
it (1) encroaches on an interest protected by the due process clause, (2) the
presumption is not universally true, and (3) reasonable alternative means
exist for ascertaining the presumed fact. J.B., 107 A.3d at 14.
In J.B. and Torsilieri, the Supreme Court analyzed whether SORNA
utilizes an unconstitutional irrebuttable presumption. In J.B., several juvenile
offenders argued that SORNA violated their due process rights by including an
irrebuttable presumption that all juvenile offenders “pose a high risk of
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committing additional sexual offenses,” the same language that Appellant
challenges here. The Court agreed. It held that SORNA’s presumption
impinges upon the juvenile offenders’ right to reputation embodied within
Article I, Section 1 of the Pennsylvania Constitution without giving them a
meaningful opportunity to challenge the presumption. Id. at 16. Next, based
on research credited by the trial court, the Court concluded that the
presumption was not universally true. Id. at 19. Finally, the Court observed
that SORNA already provides for individualized assessment of adult sexual
offenders as sexually violent predators and juvenile offenders as sexually
violent delinquent children. Id. Thus, it was possible to use a similar
individualized assessment process to consider whether juvenile sexual
offenders posed a high risk of recidivating.5 Id.
In Torsilieri, an adult defendant convicted of aggravated indecent
assault and indecent assault claimed that SORNA was unconstitutional on its
face by creating an irrebuttable presumption that all sexual offenders pose a
high risk of recidivation. The trial court agreed with the defendant. It opined
that “[t]he public declaration, based on faulty premises . . ., that all sexual
offenders are dangerous recidivists only serves to compound the isolation and
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5 Following J.B., this Court held that J.B. applies not only to juveniles but also
to criminal defendants who committed their crimes as juveniles but were
convicted as adults. Commonwealth v. Haines, 222 A.3d 756, 758 (Pa.
Super. 2019).
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ostracism experienced by this population and sorely diminish their chances of
productively reintegrating into society.” Trial Ct. Op., Commonwealth v.
Torsilieri, No. 15-CR-0001570-2016, at 44 (C.C.P. Chester Cty., Aug. 30,
2018). The court reasoned that SORNA applied not only to sexual offenses
but also to crimes such as unlawful restraint, 18 Pa.C.S.A. § 2902(b), which
did not necessarily entail sexual conduct, but subjected the offenders to
“global public shaming as incorrigible sexual recidivists.” Id. at 44-45.
The Commonwealth appealed to the Supreme Court, which examined
the global argument whether SORNA created an irrebuttable presumption as
to all sexual offenders. Torsilieri, 232 A.3d at 585-88. Although the Court
acknowledged that the defendant presented “colorable constitutional
challenges” through the scientific research he presented to the trial court in
expert affidavits, id. at 584, the Court held that remand was necessary
to allow the parties to present additional argument and evidence
to address whether a scientific consensus has developed to
overturn the legislative determinations in regard to adult sexual
offenders’ recidivation rates and the effectiveness of a tier-based
registration and notification system as they relate to the prongs
of the irrebuttable presumption doctrine.
Id. at 587-88.6
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6 Shortly before the Court decided Torsilieri, it held in Commonwealth v.
Butler, 226 A.3d 972 (Pa. 2020), that SORNA’s provisions relating to sexually
violent predators (“SVPs”) are constitutional. An SVP is an individual
convicted of one or more sexually violent offenses whom the Sexual Offender
Assessment Board determines to have “a mental abnormality or personality
disorder that makes the individual likely to engage in predatory sexually
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Against this backdrop, we turn to the irrebuttable presumption
arguments in Appellant’s brief. Appellant first presents the same facial
challenge that the Supreme Court recently addressed in Torsilieri, namely,
SORNA creates an irrebuttable presumption that all sexual offenders are
dangerous and pose a high risk of recidivation. Appellant’s Brief at 26-35.
We think it would be inconsistent with Torsilieri for us to decide Appellant’s
facial challenge. The Supreme Court held in Torsilieri that the record in that
case was insufficient to resolve the defendant’s facial challenge to SORNA’s
constitutionality, and the Court remanded for submission of further evidence
on the global issues at the heart of the facial challenge. Since the record in
this case is more sparse than in Torsilieri,7 it would be inconsistent with
Torsilieri for us to rule on Appellant’s facial challenge without further
evidentiary proceedings. See also Mickley, 2020 Pa. Super. 233, at 7-10 (in
child pornography case, remanding in accordance with Torsilieri for
evidentiary proceedings whether SORNA creates facially unconstitutional
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violent offenses.” 42 Pa.C.S.A. § 9799.12. The trial court herein did not
designate Appellant, an SVP, so this case does not relate in any way to
SORNA’s SVP provisions or to the analysis of the SVP provisions in Butler.
7 Prior to the appeal in Torsilieri, the defendant submitted expert affidavits
citing scientific studies indicating that sexual offenders had low recidivism
rates. The Supreme Court determined that “a hearing on the merits of the
evidence” was necessary instead of “mere citations” to studies. Torsilieri, at
*12. In contrast, Appellant did not present any scientific evidence at
sentencing in the present case.
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irrebuttable presumption against sexual offenders). However, unlike in
Torsilieri or Mickley, we see no need to remand for hearings on Appellant’s
global facial challenge, because we find merit to Appellant’s as-applied
challenge limited to the particular circumstances of this case.8
The first prong of the irrebuttable presumption test requires us to
examine whether, as applied to this case, SORNA encroaches on a due process
right of Appellant. We find guidance on this subject from J.B.’s discussion of
SORNA’s impact on juveniles’ due process right to reputation.
SORNA explicitly declares that sexual offenders, including juvenile
offenders, “pose a high risk of committing additional sexual
offenses and protection of the public from this type of offender is
a paramount governmental interest.” 42 Pa.C.S.[A.]
§ 9799.11(a)(4). Indeed, a primary purpose of SORNA is to
inform and warn law enforcement and the public of the potential
danger of those registered as sexual offenders. Moreover, even
without this language, the common view of registered sexual
offenders is that they are particularly dangerous and more likely
to reoffend than other criminals. See, e.g., [In the Interest of
B.B. et al., No. CP–45–JV–248–2012 (CP Monroe Jan. 16, 2014),]
at 19 (“Common sense, as well as our society’s perception of
Megan’s Law registrants, would lead an average person of
reasonable intelligence to conclude that there is something
dangerous about the registrant.”); Juveniles’ Brief at 20
(referencing research regarding public perceptions of sexual
offenders). As argued by the Juveniles and found by the trial
court, registration also negatively affects juvenile offenders[’]
ability to obtain housing, schooling, and employment, which in
turn hinders their ability to rehabilitate. Tr. Ct. Op. at 19. Thus,
SORNA registration requirements, premised upon the
presumption that all sexual offenders pose a high risk of
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8 We note that counsel for Appellant preserved her as-applied argument for
appeal by asserting at sentencing that SORNA is unconstitutional “as it applies
to [Appellant].” N.T., 7/20/18, at 4.
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recidivating, impinge upon juvenile offenders’ fundamental right
to reputation as protected under the Pennsylvania Constitution.
Importantly, SORNA does not provide juvenile offenders a
meaningful opportunity to challenge the presumption. While a
juvenile offender is provided an opportunity to be heard regarding
the adjudication of delinquency for the relevant crime, the
delinquency hearing does not consider the relevant question of
whether the juvenile offender is at risk of reoffense. Instead, the
juvenile offender is automatically designated a sexual offender
solely as a result of the delinquency adjudication under Section
9799.12 (defining “juvenile offender” and “sexual offender”) and
9799.13 (entitled “Applicability”), with the attendant presumption
of a high risk of reoffense. Moreover, we reject the suggestion
that a Section 9799.17 hearing twenty-five years in the future,
only upon perfect compliance with the registration requirements,
provides an opportunity to be heard on the question of likelihood
of recidivating. As we noted in [Commonwealth, Dep't of
Transp., Bureau of Driver Licensing v. Clayton, 684 A.2d
1060, 1063 (Pa. 1996)], a process which eliminates consideration
of the paramount factor, in this case the likelihood of committing
additional sexual offenses, does not provide procedural due
process, as it blocks the opportunity to be heard on the relevant
issue. Accordingly, we conclude that the Juveniles have asserted
a constitutionally protected interest in their reputation that has
been encroached by the use of an irrebuttable presumption.
Id. at 16-17. In our view, J.B.’s analysis concerning SORNA’s impact on
juvenile offenders’ reputation is equally pertinent as to Appellant.
“[R]eputation is an interest that is recognized and protected by our highest
state law: our Constitution.” R. v. Department of Public Welfare, 636 A.2d
142, 149 (Pa. 1994) (citing Pa. Const., Art. I, § 1). It is beyond serious
dispute that registration as a sex offender creates a presumption—indeed, a
stigma—that Appellant is a dangerous adult who is likely to commit further
sexual offenses. 42 Pa.C.S.A. § 9799.11(a)(4). This mark of disgrace
profoundly affects her ability to obtain employment, education, and housing,
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which in turn impedes her ability to function as a productive member of
society. Furthermore, SORNA fails to provide Appellant a meaningful
opportunity to rebut the presumption that she is a danger to re-offend. She
was automatically designated a Tier I sexual offender based on her convictions
for interference and conspiracy, and she will not have any opportunity to
challenge this designation or claim that she has been rehabilitated throughout
the fifteen-year registration period. These factors convince us that SORNA,
as applied to this case, creates an irrebuttable presumption that encroaches
upon Appellant’s constitutional interest in her reputation.
The second prong of the irrebuttable presumption test calls for analysis
whether SORNA’s presumption that sexual offenders present a high risk of
recidivating is true as to Appellant. It plainly is not. Prior to this case,
Appellant had no criminal history. Furthermore, there is no evidence in this
case that Appellant committed or intended to commit any acts of a sexual
nature. The Crimes Code defines the crime of interference as follows, “A
person commits an offense if he knowingly or recklessly takes or entices any
child under the age of 18 years from the custody of its parent, guardian or
other lawful custodian, when he has no privilege to do so.” 18 Pa.C.S.A.
§ 2904(a). A “taking” from custody “connotes a substantial interference with
parental control.” Commonwealth v. Rodgers, 599 A.2d 1329, 1331 (Pa.
Super. 1991). “Enticing” is defined as “[t]o wrongfully solicit, persuade,
procure, allure, attract, draw by blandishment, coax or seduce.” Id. “It is
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the interruption of lawful custody, and not merely the ‘taking’[,] that
constitutes the statutory offense [of interference].” Id. Furthermore, to
prove conspiracy, the Commonwealth must prove that the defendant entered
into an agreement to commit or aid in a criminal act with another person or
persons with a shared criminal intent, and an overt act was done in
furtherance of the conspiracy. 18 Pa.C.S.A. § 903. The present case arose
from a custody dispute between Khalid and Angelita, the father and mother of
a three-year-old child, Pharaoh. Appellant assisted Khalid in taking Pharaoh
away from Angelita by (1) driving with Khalid and Lisa Walker to Pharaoh’s
home in Reading, (2) pulling Angelita’s daughter, Liajah, away while Pharaoh
was placed in the car, (3) leaving Reading in the car with Khalid, Pharaoh,
Liajah, and Lisa, and (4) driving to a train station in Philadelphia, where
Pharaoh was transferred to another vehicle. Although Pharaoh’s abduction
clearly was a “taking” in violation of the interference statute, there is no
evidence that Appellant engaged in “enticing” behaviors associated with
sexual predators, such as coaxing or attracting Pharaoh into the vehicle. Nor
was there any sexual objective in the conspiracy to abduct Pharaoh. Although
Appellant did not submit any expert or scientific testimony concerning her risk
to reoffend, it is clear, from the absence of any sexual misconduct in this case
along with Appellant’s otherwise spotless record, that she is not a high risk to
commit additional (or any) sexual offenses.
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The final prong of the irrebuttable presumption test requires
examination of whether reasonable alternatives exist to determine whether
Appellant is a high risk to commit additional sexual offenses in the future.
Appellant pointed out in her sentencing memorandum and again in this appeal
that two such alternatives exist. First, there are well-established risk
assessment tools employed in Pennsylvania. The Sexual Offenders
Assessment Board (“SOAB”), the entity created by the legislature to perform
sexually violent predator (“SVP”) assessments, 42 Pa.C.S.A. §§ 9799.24,
9799.35, has identified a variety of “actuarial instruments” that are available
and preferable for determining risk assessments. See SOAB Containment
Model (July 2006), at 192-208. These tools “should be routinely used”
because they can help “distinguish between low-risk and high-risk sex
offenders.” Id. at 207. Failure to do so “wastes resources” because “most
sex offenders are never reconvicted for a sexual offense.” Id. at 207. Second,
the SOAB itself could perform an individualized assessment, similar to the
tests it performs to determine whether individuals are SVP’s. 42 Pa.C.S.A.
§ 9799.24. Neither of these alternatives was used here.
For these reasons, we hold that, as applied to Appellant, SORNA’s
provision that sexual offenders pose a high risk of recidivating is an
irrebuttable presumption that clearly, palpably, and plainly violates Appellant’s
constitutional right to reputation. Appellant’s convictions for interference and
conspiracy to interfere with custody of children were not sexual offenses. The
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fact that Appellant had a prior record score of zero and her presentence report
acknowledged that Appellant’s offenses were “totally out of character” for her
underscore the illegality of SORNA’s presumption as applied to Appellant.
Nothing in this record suggests that Appellant is a high risk to commit
additional (or any) sexual offenses. Under these circumstances, we find no
need for a remand, such as that ordered in Tonsilieri or Mickley, to
determine whether Appellant poses a high risk of recidivism.
Our recent decision in Commonwealth v. Manzano, —A.3d—, 2020
WL 4913292 (Pa. Super., Aug. 21, 2020), does not change the outcome of
this case. The trial court in Manzano ordered the defendant to register as a
Tier III offender under SORNA based on his nolo contendere pleas to the
sexual offenses of rape of a child, aggravated indecent assault of a child, and
indecent assault of a child.9 Citing Torsilieri, the defendant argued, inter
alia, that SORNA is unconstitutional because it creates an irrebuttable
presumption of dangerousness in violation of his right to reputation under the
Pennsylvania Constitution. Without mentioning whether the defendant was
raising a facial or an as-applied challenge, this Court rejected his argument,
reasoning, “[U]nlike the defendant in Torsilieri, [the defendant] has
produced no scientific evidence whatsoever to support his claims that the
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9 The court also ordered the defendant’s designation as an SVP. The
defendant raised unsuccessful challenges to his SVP designation in this Court.
Id., 2020 WL 4913292, at **2-6. These issues are not relevant in the present
case because, as noted above, Appellant is not an SVP.
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underlying legislative policy infringes on [his] rights.” Id., 2020 WL 4913292,
at *7. In contrast, we have held in this case that Appellant did not need
scientific evidence to prevail, because other evidence in the record established
that SORNA is unconstitutional as applied to Appellant.
We vacate the order directing Appellant to register as a sex offender
under SORNA. Because of our determination that SORNA creates an
unconstitutional irrebuttable presumption as applied to Appellant, we see no
need to address the other constitutional challenges to SORNA raised in this
appeal.
Judgment of sentence affirmed. Order directing Appellant to comply
with SORNA vacated. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/23/2020
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