Com. v. Hovatter, J. ( 2021 )

J-A21044-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN TAYLOR HOVATTER :
:
Appellant : No. 1368 EDA 2020
Appeal from the Judgment of Sentence Entered June 9, 2020
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0003051-2019
BEFORE: KUNSELMAN, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 15, 2021
Appellant John Taylor Hovatter appeals from the judgment of sentence
entered in the Court of Common Pleas of Bucks County on June 9, 2020,
following a negotiated guilty plea. We affirm.
On April 6, 2019, Appellant, then an 81-year-old man,1 was arrested
and charged by the Middletown Township Police Department with Aggravated
Indecent Assault of a Child, 18 Pa.C.S.A. § 3125(b); Unlawful Contact with a
Minor -- Sexual Offense, 18 Pa.C.S.A. § 6318(a)(1); Aggravated Indecent
Assault-- Complainant Less than 13 Years Old, 18 Pa.C.S.A. § 3125(a)(7);
Corruption of Minors -- Defendant Age 18 or Above, 18 Pa.C.S.A. §
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 Appellant’s date of birth is May 6, 1937. He was 82 years of age when he
pled guilty and is currently 84 years old.
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6301(a)(1)(ii); and Indecent Assault of Person Less than 13 Years of Age, 18
Pa.C.S.A. § 3126(a)(7).
The aforementioned charges arose as a result of a report received on
January 16, 2019, from a nine-year-old female victim that she had been
sexually assaulted by Appellant in her home.2 Appellant, who had befriended
the victim’s family through his church in 2015, began to visit the victim’s
parents frequently and often watched television alone with the victim during
those visits.
In January of 2019, the victim became distressed and disclosed to her
parents that Appellant “had touched her private parts, making a hand motion
over her genitals.” Following a forensic interview, the victim confirmed that
at times when she had been alone in the living room with Appellant, he would
ask her to sit on his lap or next to him on the couch, and he would touch her
on her vagina and anus. Appellant admitted he “did put [his] hand on the
young lady over her clothes,” but he stressed there was no penetration. N.T.
12/10/19, at 22-25.
On June 5, 2019, Appellant waived his right to a hearing and all charges
were bound over for trial. On December 10, 2019, Appellant entered a
negotiated plea of guilty to one count of Indecent Assault of a Person Less
than 13 Years of Age. The trial court granted the Commonwealth’s request to
____________________________________________
2 The victim’s date of birth is May 8, 2009.
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nolle pros all remaining counts of the Information and also agreed not to
invoke the twenty-five-year mandatory minimum sentence applicable to the
offense. N.T. 12/10/19, at 9-10.3
Instead, Appellant was to be sentenced to a period of incarceration of
not less than two (2) nor more than five (5) years. Id. Appellant also was
advised of his registration and notification requirements as a Tier III offender
under the Sexual Offender Registration and Notification Act ("SORNA").4 N.T.
12/10/19, at 21.
At Appellant’s request, sentencing was deferred and scheduled for
February 20, 2020, to enable him to undergo an oral surgical procedure. N.T.
12/10/19, at 10. Claiming he still had not fully recovered from the surgery,
Appellant sought and was granted a further continuance until April 6, 2020.
On June 9, 2020, the trial court imposed the negotiated sentence of
incarceration in a state correctional institution for not less than 2 years nor
more than 5 years. Appellant was permitted to self-surrender on July 15,
2020, at 9:00 a.m.
On July 8, 2020, Appellant filed a counseled “Emergency Motion to Stay
Sentence” and attached numerous medical reports thereto. Pursuant to this
Court's directive of August 3, 2020, the trial court issued its “Statement”
____________________________________________
3 Appellant has a prior 1986 conviction for Indecent Assault (18 Pa. C.S.A. §
3126) which also involved a child complainant. Accordingly, he was facing a
mandatory minimum sentence of twenty-five (25) years of incarceration.
4 42 Pa.C.S.A. §§ 9799.10-9799.41.
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setting forth its reasons for denying Appellant’s motion to stay execution of
his sentence on September 2, 2020. Therein, the trial court observed that the
medical records did not include a certification of authenticity or other
documentation, nor was there a summary of treatment or diagnosis of
Appellant’s condition. Also, there were no resumes or curricula vitae of any
doctor. Notwithstanding, the trial court reviewed the records after which it
noted the following:
1. The primary basis for the Emergency Motion was a diagnosis of
peripheral vascular disease by Dr. James McGuckin;
2. This condition was originally diagnosed by Dr. McGuckin on
February 28, 2020 at which time Appellant did not want to have
an arterial intervention and claimed he would return in six
months;
3. Appellant also saw Dr. Youssef Kabbani on April 24, 2020 to
have his toenails trimmed. At that time, Dr. Kabbani noted
Appellant had moderate peripheral vascular disease;
4. On June 26, 2020, Appellant saw Dr. Kabbani for another
toenail trimming. He was fully ambulatory with street shoes
and was walking without any assistive devices (cane); and
5. Dr. Kabbani, on behalf of Appellant, made an appointment at
that time (June 26, 2020) for Appellant to have an arteriogram
on July 14, 20202 with Dr. McGuckin.
We interacted with Appellant on December 10, 2019 and June
9, 2020. On both occasions, he claimed to have extreme
difficulty hearing and appeared very unsteady on his feet. He
was not able to walk or stand without the assistance of a cane.
At those times, we believed he was overstating, or
exaggerating his condition. After review of the aforementioned
medical records, we believed the exaggeration was continuing.
Appellant is an 83 year old man with the health issues of a
person his age. But, these health issues did not prevent him
from committing this crime when he was 81 years of age. Nor
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should they prevent him from serving the sentence he
negotiated.
Trial Court Statement filed 9/2/20, at 2.
The trial court denied Appellant’s emergency motion, and Appellant filed
his notice of appeal on July 9, 2020. On July 24, 2020, Appellant filed another
“Emergency Motion to Stay Sentence” with this Court. Following our review
of the Motion, the Commonwealth’s answer thereto, and the trial court’s
statement, we denied the Motion in a Per Curiam Order entered October 14,
2020.
Prior thereto, on July 30, 2020, the trial court had directed Appellant to
file a concise statement of matters complained of on appeal, and Appellant
complied on August 14, 2020. The trial court did not file a separate opinion
pursuant to Pa. R.A.P. 1925(a) addressing the claims Appellant raised in his
concise statement.
In his brief, Appellant presents the following claims for our review:
1. Is the current version of the SORNA statute
unconstitutional, as applied to [Appellant], and is it illegal to
impose a lifetime registration requirement upon him after his
release from prison?
2. Is the current version of SORNA, Act 10 of 2018 (H.B. 631),
reenacted by Act 29 of 2018, P.L. 140 (H.B. 1952),
unconstitutional and therefore, should not be the registration
requirement be applied to [Appellant]?
3. If the court does not invalidate [Appellant’s] sentence on an
“as applied basis”, or find that the statute is unconstitutional,
should imposition of this statutory sentence be stayed pending the
decision in Commonwealth v. Torsilieri, -- A.3d --, 2020 WL
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3241625 (Pa. June 16, 2020), which may find Section H of the
new SORNA law unconstitutional?
Brief for Appellant at 2.
A challenge to the constitutionality of a statute presents this Court with
a question of law, and our review is plenary. A statute is presumed to be
constitutional and will not be declared unconstitutional unless it clearly,
palpably, and plainly violates the constitution. Thus, the party challenging the
constitutionality of a statute bears a heavy burden of persuasion.
Commonwealth v. Howe, 842 A.2d 436, 441 (Pa.Super. 2004).
Appellant raises his related issues for the first time on appeal.
Therefore, before we reach the merits of Appellant’s claims, we first must
determine whether he has properly preserved them for our review.
“[C]onstitutional issues, including sentencing issues based upon the
constitution, are waived if they are not properly raised in the trial court.”
Commonwealth v. Howe, 842 A.2d 436, 441 (Pa.Super. 2004); see also
Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot
be raised for the first time on appeal.”). Indeed, this Court recently concluded
that a defendant waived numerous constitutional arguments concerning
whether Revised Subchapter H creates “an irrefutable and irrebuttable
presumption against the offender” by failing to raise the claims in the trial
court. See Commonwealth v. Reslink, , ––– A.3d ––––, –––– – ––––, 2020
WL 7415959, at *3-*4 (2020).
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In Reslink, the appellant was convicted following a jury trial of indecent
assault of a person less than 13 years of age, endangering the welfare of a
child, corruption of minors, and criminal attempted indecent assault, and he
was sentenced accordingly. Appellant did not file a post-sentence motion. Id.
at *1.
On appeal, the appellant raised a challenge to the constitutionality of
Revised Subchapter H of SORNA/Act 10 on the grounds that it “creates ‘an
irrefutable presumption against the offender,’” and violates “federal and state
constitutional prohibitions against cruel and unusual punishment.” Id. at *3.
This Court found that the appellant had waived the constitutional issue
because he had failed to raise it “before the trial court, in a motion to bar
application of SORNA, or in post-sentence motions.” Id. at *4.
In reaching this decision, we noted that it “is well-settled that issues not
raised before the trial court cannot be advanced for the first time on appeal.”
Id. (citing Pa.R.A.P. 302(a)). The fact that the appellant raised a constitutional
claim did not alter this Court's analysis. See id. (citing In re F.C. III, 2 A.3d
1201, 1212 (Pa. 2010)) (finding appellant's constitutional claims waived
where he failed to raise them before the trial court, depriving that tribunal of
the opportunity to consider and rule on them); see also Commonwealth v.
Howe, 842 A.2d 436, 441 (Pa. Super. 2004) (“[C]onstitutional issues,
including sentencing issues based upon the constitution, are waived if they
are not properly raised in the trial court.”).
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As the Commonwealth argues herein, Appellant failed to raise his
constitutional challenges to SORNA, or any other objection, before the trial
court at the time of his guilty plea although the trial court advised him of his
registration requirements as a Tier III offender under Revised Subchapter H.
Moreover, Appellant raised no objection at the time of his sentencing, nor did
he file any motions either before or after his negotiated guilty plea or before
or after sentencing challenging SORNA's constitutionality.
To the contrary, his trial counsel stated that “[Appellant] is aware of
what is going on, understands that Your Honor has just sentenced him and
wanted it to go that way today, for the reasons I stated before.” N.T.
Sentencing, 6/9/20, at 12-13. Thus, we find he has waived his first two
issues.
When considering Appellant’s third claim, we acknowledge the
Pennsylvania Supreme Court’s decision in Commonwealth v. Torsilieri, --
A.3d --, 2020 WL 3241625 (Pa. June 16, 2020). Therein, our Supreme Court
was faced with addressing the constitutionality of the provisions in Revised
Subchapter H that are applicable to non-SVPs. The defendant had been
convicted of aggravated indecent assault and indecent assault and claimed
that SORNA II was unconstitutional on its face by creating an irrebuttable
presumption that all sexual offenders pose a high risk of recidivism. Id. at
572-573. The defendant argued that the presumption that all sex offenders
are dangerous and pose a high risk of recidivism, necessitating registration,
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was not supported by current research and threatens public safety by
preventing the re-integration of offenders as law-abiding citizens. Id. The
trial court agreed, finding the registration provisions of Revised Subchapter H
unconstitutional based largely on the scientific evidence the defendant had
advanced at the hearing. Id. at 574-575. The Commonwealth appealed that
determination directly to our Supreme Court.
However, our Supreme Court did not reach the merits of any of the
constitutional claims at issue on appeal after determining that the factual
record had not been sufficiently developed below. The Court remanded for
further development of the record and to allow the parties to address whether
Revised Subchapter H amounts to criminal punishment. Id. at 587-588.
As previously stated, in Reslink this Court held that constitutional
claims like those raised in Torsilieri are waivable. This Court recently reached
the same conclusion in Commonwealth v. Snyder, 251 A.3d 782, 794-95
(Pa.Super. 2021), when the defendant raised his challenge to Revised
Subchapter H for the first time on appeal and styled his claims as a challenge
to the legality of his sentence. Id. at 795 n.11 (stating “[w]e read Reslink for
the limited proposition that constitutional claims for relief directed at
Pennsylvania's sexual offender registration regime that concern the
presumption of recidivism discussed in Torsilieri are subject to waiver under
Rule 302(a), regardless of whether that claim sounds in legality of sentence.”).
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We find Reslink and Synder are dispositive of this issue. Here,
Appellant raises similar constitutional challenges for the first time on appeal
that our Court found waived in those cases. Because he did not present these
challenges to the trial court in the first instance, they are waived, and this
cannot be cured by a stay of the reporting requirement portion of his sentence
pending our Supreme Court’s decision in Torsilieri.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2021
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