Com. v. Guerra, J. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JASON GUERRA :
:
Appellant : No. 423 EDA 2018
Appeal from the Judgment of Sentence June 24, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003037-2014
BEFORE: GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.
MEMORANDUM BY GANTMAN, P.J.E.: FILED AUGUST 19, 2019
Appellant, Jason Guerra, appeals nunc pro tunc from the judgment of
sentence entered in the Philadelphia County Court of Common Pleas, following
his jury trial convictions for one count each of rape, involuntary deviate sexual
intercourse, unlawful contact with a minor, sexual assault, corruption of
minors, simple assault, sexual exploitation of children, trafficking of persons,
and 10 counts of promoting prostitution.1 We affirm in part, vacate in part,
and remand.
In its opinion, the trial court correctly set forth most of the relevant facts
of this case. Therefore, we have no reason to restate them. We add that
Appellant committed his offenses between November 2012 and May or June
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1 18 Pa.C.S.A. §§ 3121(a)(1); 3123(a)(1); 6318(a)(1); 3124.1;
6301(a)(1)(ii); 2701(a)(1); 6320(a); 3002(a); and 5902, respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
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of 2013. Prior to the current offenses, in 2009, police arrested Appellant for
an alleged assault, and recovered a laptop. Appellant did not request recovery
of this laptop, and it remained in police custody. In 2014, police obtained a
search warrant for Appellant’s residence. Police executed the search on
January 21, 2014, and recovered a second laptop, among other items.
On February 8, 2016, Appellant filed a motion to suppress evidence
recovered from Appellant’s laptops, cellphones, and computers based on an
invalid search warrant. That same day, the court held a hearing where
Appellant specified he was only arguing the invalidity of the 2014 search
warrant. The court denied Appellant’s motion to suppress at the conclusion
of the hearing. On February 17, 2016, a jury convicted Appellant of 10 counts
of promoting prostitution, 6 counts of various sexual offenses, and one count
each of trafficking persons and simple assault. On June 24, 2016, the court
sentenced Appellant to 48 to 96 years’ imprisonment and informed Appellant
of his obligation to register and report for life as a Tier III offender under the
Sexual Offender Registration and Notification Act (“SORNA”). Appellant timely
filed a post-sentence motion on July 1, 2016, which was denied by operation
of law on October 31, 2016.
On July 18, 2017, Appellant timely filed a pro se petition pursuant to the
Post-Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546. Appointed
counsel filed an amended PCRA petition on October 24, 2017, which sought
reinstatement of Appellant’s post-sentence motion rights and direct appeal
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rights nunc pro tunc. On January 4, 2018, the PCRA court entered an order
reinstating Appellant’s post-sentence motion and direct appeal rights nunc pro
tunc. On Monday, January 15, 2018, Appellant timely filed a post-sentence
motion nunc pro tunc. Appellant filed a premature notice of appeal on
February 5, 2018. Appellant’s post-sentence motion was denied by operation
of law on May 16, 2018.2 On June 13, 2018, the court ordered Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Appellant timely complied on July 5, 2018, and filed a
supplemental Rule 1925(b) statement on October 11, 2018.
Appellant raises the following issues for our review:
UNDER THE 4TH AND 14TH AMENDMENTS OF THE UNITED
STATES CONSTITUTION AND ARTICLE 1, SECTION 8 OF THE
PENNSYLVANIA CONSTITUTION, WAS THE JANUARY 20,
2014 SEARCH WARRANT FOR 7607 RUGBY ST. INVALID
BECAUSE ITS AUTHORITY TO SEARCH WAS VAGUE AND
OVERBROAD AS IT IS EVEN PHRASED IN A ‘CATCH-ALL’
FASHION STATING “ALL RECORDS OF THE BACKPAGE
POSTINGS, PHOTOS, FINANCIAL RECORDS, ETC. ANY AND
ALL CONTRABAND.”?
UNDER THE 4TH AND 14TH AMENDMENTS OF THE UNITED
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2 Appellant’s notice of appeal relates forward to May 16, 2018, the date his
post-sentence motion was denied by operation of law. Thus, there are no
jurisdictional impediments to our review. See Commonwealth v. Borrero,
692 A.2d 158 (Pa.Super. 1997) (explaining general rule that if defendant files
timely post-sentence motion, judgment of sentence does not become final for
purposes of appeal until trial court disposes of motion or motion is denied by
operation of law). See also Commonwealth v. Ratushny, 17 A.3d 1269,
1271 n.4 (Pa.Super. 2011) (explaining if court denies appellant’s post-
sentence motion following filing of premature notice of appeal, Superior Court
will treat appellant’s premature notice of appeal as having been filed after
entry of order disposing of post-sentence motion).
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STATES CONSTITUTION AND ARTICLE 1, SECTION 8 OF THE
PENNSYLVANIA CONSTITUTION WAS THE TRIAL COURT’S
AUTHORIZATION TO SEARCH THE 2009 LAPTOP/IPHONE
VAGUE AND OVERBROAD?
(Appellant’s Brief at 3-4).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Diana Anhalt,
we conclude Appellant’s issues merit no relief. The trial court opinion
comprehensively discusses and properly disposes of the questions presented.
(See Trial Court Opinion, filed February 14, 2019, at 7-15) (finding: (1) 2014
warrant and corresponding affidavit of probable cause supported probable
cause to believe contraband or evidence of crime would be found within
computers at 7607 Rugby Street in Philadelphia; affidavit of probable cause
stated Victim and two additional witnesses, who worked as prostitutes for
Appellant, noted Appellant would bring his laptop computer from his residence
to hotel where he used it to post BackPage ads; warrant listed specific
information that authorities sought from electronic devices in Appellant’s
home; warrant was sufficiently specific to allow authorities to seize and search
those items; warrant included language limiting its scope and described
equipment believed to have been instrumental to Appellant’s suspected
criminal acts of promoting prostitution and human trafficking; (2) Appellant
did not object to manner of probable cause determination in February 8, 2016
motion or at hearing on that motion; on record, Appellant specifically excluded
2009 materials from February 2016 motion; when court asked if Appellant’s
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argument regarding February 2016 motion excluded 2009 materials, counsel
replied, “That is correct”; at February 2016 hearing, counsel twice agreed on
record to court finding probable cause for search of 2009 materials in lieu of
search warrant, so Appellant waived any objection to search of 2009
materials; moreover, even if Appellant had preserved this issue for appeal, no
relief would be due; court considered motion, heard argument from both
parties, and found sufficient probable cause to search 2009 materials;
Commonwealth presented evidence of statements of women, who had worked
for Appellant as prostitutes, detailing Appellant’s use of his laptop to post ads
on BackPage and to keep expense information; information was enough to
show fair probability that contraband or evidence of crime would be found on
2009 materials; 2009 materials were properly searched). The record supports
the court’s rationale. Accordingly, we affirm Appellant’s issues based on the
trial court opinion.
Nevertheless, we are mindful of recent case law calling into question the
validity of Appellant’s SORNA registration requirements. Thus, we elect to
review the legality of Appellant’s sentence sua sponte. See Commonwealth
v. Randal, 837 A.2d 1211 (Pa.Super. 2003) (en banc) (explaining challenges
to illegal sentence cannot be waived and may be raised by this Court sua
sponte, assuming jurisdiction is proper; illegal sentence must be vacated).
Our Supreme Court declared SORNA unconstitutional, to the
extent it violates the ex post facto clauses of both the United
States and Pennsylvania Constitutions. [Commonwealth
v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017), cert. denied,
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___ U.S. ___, 138 S.Ct. 925, 200 L.Ed.2d 213 (2018)]. The
Muniz court determined SORNA’s purpose was punitive in
effect, despite the General Assembly’s stated civil remedial
purpose. SORNA also violates the ex post facto clause of
the Pennsylvania Constitution because it places a unique
burden on the right to reputation and undermines the
finality of sentences by demanding more severe registration
requirements. The effective date of SORNA, December 20,
2012, controls for purposes of an ex post facto analysis.
In light of Muniz, this Court also held: “[U]nder Apprendi
[v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d
435 (2000)] and Alleyne [United States, 570 U.S. 99, 133
S.Ct. 2151, 186 L.Ed.2d 314 (2013)] a factual finding, such
as whether a defendant has a mental abnormality or
personality disorder that makes him…likely to engage in
predatory sexually violent offenses, that increases the
length of registration must be found beyond a reasonable
doubt by the chosen fact-finder.” Butler, supra at 1217
(addressing SVP status sua sponte as illegal sentence)
(internal quotations and citations omitted). See also
Alleyne, supra (holding any fact that increases mandatory
minimum sentence for crime is considered element of crime
to be submitted to factfinder and found beyond reasonable
doubt). This Court further held: “Section 9799.24(e)(3) of
SORNA violates the federal and state constitutions because
it increases the criminal penalty to which a defendant is
exposed without the chosen fact-finder making the
necessary factual findings beyond a reasonable doubt.” Id.
at 1218. The Butler Court concluded that trial courts can
no longer designate convicted defendants as SVPs or hold
SVP hearings, “until [the] General Assembly enacts a
constitutional designation mechanism.” Id. (vacating
appellant’s SVP status and remanding to trial court for sole
purpose of issuing appropriate notice under 42 Pa.C.S.A. §
9799.23, governing reporting requirements for sex
offenders, as to appellant’s registration obligation).
Following Muniz and Butler, the Pennsylvania General
Assembly enacted legislation to amend SORNA. Act 10
amended several provisions of SORNA, and also added
several new sections found at 42 Pa.C.S.A. §§ 9799.42,
9799.51-9799.75. In addition, the Governor of
Pennsylvania signed new legislation striking the Act 10
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amendments and reenacting several SORNA provisions,
effective June 12, 2018. Through Act 10, as amended in Act
29, the General Assembly created Subchapter I, which
addresses sexual offenders who committed an offense on or
after April 22, 1996, but before December 20, 2012.
Subchapter I contains less stringent reporting requirements
than Subchapter H, which applies to offenders who
committed an offense on or after December 20, 2012.
Commonwealth v. Alston, 2019 PA Super 178, *2-*3 (filed June 6, 2019)
(footnotes and some internal citations omitted). “[W]hen an appellant's
offenses straddle the effective dates of Subchapters H and I of SORNA, he is
entitled to the lower reporting requirements of Subchapter I, absent a specific
finding of when the offenses related to the convictions actually occurred.” Id.
at *3.
Instantly, Appellant committed sexual offenses between November
2012 and May or June of 2013. A jury convicted Appellant of numerous sexual
offenses but did not specifically find the dates when Appellant committed his
offenses. Appellant’s offenses straddled the operative dates for Subchapters
H and I. Without a specific jury finding of when the offenses occurred,
Appellant is entitled to the lower punishment. See id. Accordingly, we affirm
in part and vacate in part regarding Appellant’s SVP status/SORNA reporting
requirements; we remand the case for the court to give Appellant proper
registration and reporting requirements.
Judgment of sentence affirmed in part and vacated in part solely as to
SVP status and SORNA reporting requirements; case remanded with
instructions. Jurisdiction is relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/19
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