Com. v. Enagbare, O. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
OROBOSA ENAGBARE :
:
Appellant : No. 1844 EDA 2020
Appeal from the PCRA Order Entered August 6, 2020
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0002279-2012
BEFORE: PANELLA, P.J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED SEPTEMBER 27, 2021
Orobosa Enagbare (Appellant) appeals pro se from the order entered in
the Chester County Court of Common Pleas, denying his first Post Conviction
Relief Act1 (PCRA) petition. The order was entered following a remand by a
prior panel of this Court, for an evidentiary hearing on one issue: whether trial
counsel had a reasonable basis for not objecting to the trial court’s providing
the jury, during deliberations, with a copy of Appellant’s confession, in the
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
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form of transcripts of two telephone calls between Appellant and the victim.2
The PCRA court determined trial counsel had a reasonable basis for not
objecting, and thus denied relief on Appellant’s claim of ineffective assistance
of counsel. On appeal, Appellant argues this Court should announce a new
holding that counsel’s failure to lodge an objection pursuant to Pa.R.Crim.P.
646(C)(2) is per se unreasonable. We disagree, and thus affirm. We further
direct the PCRA court, upon remand of the record, to determine the
appropriate SORNA3 registration and reporting requirements for Appellant.
I. Facts & Procedural History
Because the parties and PCRA court are well familiar with the underlying
facts and extensive procedural history, and this memorandum decision does
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2 See Pa.R.Crim.P. 646(C)(2) (“During deliberations, the jury shall not be
permitted to have . . . a copy of any written or otherwise recorded confession
by the defendant[.]”).
We note this appeal is the fourth in this matter before this Court. First,
the Commonwealth appealed from the trial court’s April 31, 2013, suppression
of a statement given by Appellant to a police detective; this Court affirmed.
Commonwealth v. Enagbare, 1529 EDA 2013 (unpub. memo.) (Pa. Super.
Apr. 17, 2014). Next, Appellant appealed from the September 21, 2015,
judgment of sentence entered following his jury trial convictions; this Court
likewise affirmed. Commonwealth v. Enagbare, 785 EDA 2016 (unpub.
memo.) (Pa. Super. Feb. 8, 2017). Finally, Appellant appealed from the prior,
July 20, 2018, order denying his PCRA petition. This Court vacated the order
and remanded for an evidentiary hearing, which prompted the denial order
underlying this appeal. See Commonwealth v. Enagbare, 2854 EDA 2018
(unpub. memo.) (Pa. Super. Dec. 31, 2019).
3 Pennsylvania Sexual Offender Registration & Notification Act, 42 Pa.C.S.
§§ 9799.10 to 9799.
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not carry precedential value, we need not review the history of this case in
detail. Instead, we refer to the prior Superior Court panel’s summary of the
facts and procedural history, which addressed the same overall ineffectiveness
claim presented here. See Enagbare, 2854 EDA 2018 at 2-7, 13-15.
For ease of review, we briefly reiterate that on May 15, 2015, a jury
found Appellant guilty of rape of an unconscious person, sexual assault,
aggravated indecent assault, and indecent assault.4 On September 21, 2015,
the trial court imposed an aggregate sentence of 4½ to nine years’
imprisonment, to be followed by five years’ probation. This Court affirmed the
judgment of sentence on Appellant’s direct appeal. Enagbare, 785 EDA 2016
(unpub. memo.)
On August 4, 2017, Appellant filed a counseled “writ of habeas corpus,”
claiming, inter alia, that his trial counsel, Gina Capuano Amoriello (Trial
Counsel), was ineffective for not objecting when the trial court granted the
jury’s request, during deliberation, to examine transcripts of two telephone
calls between him and the victim. The PCRA court treated this filing as a
timely PCRA petition, and dismissed it without a hearing.
Appellant took a pro se appeal to this Court. The prior panel denied
relief on most of his issues, but remanded on his claim of Trial Counsel’s
ineffectiveness for not objecting to the telephone transcripts. Pertinently, the
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4 18 Pa.C.S. §§ 3121(a)(3), 3124.1, 3125(a), 3126(a).
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panel determined Appellant had established two prongs of the ineffective
assistance of counsel test: (1) that the underlying claim had arguable merit,
where the transcripts constituted “confessions” and thus should not have been
provided to the jury pursuant to Pa.R.Crim.P. 646(C)(2); and (2) Appellant
suffered prejudice, where the jury had requested the transcripts (rather than
“the trial court . . . merely decid[ing] on its own to send the transcripts to the
jury”), which indicated the jury placed undue weight upon them. Enagbare,
2854 EDA 2018 at 15, 18. However, the panel stated it could not rule on the
last prong of the ineffectiveness test — whether Trial Counsel had a reasonable
basis for not objecting — as the PCRA court had not received any evidence.
Id. at 19. We thus “remand[ed] this case to the PCRA court for an evidentiary
hearing on the reasonableness of counsel’s actions and for entry of findings of
fact and conclusions of law.” Id. at 19-20.
On remand, Appellant continued to proceed pro se. An initially-
scheduled hearing was continued due to the COVID-19 emergency judicial
orders. PCRA Ct. Op., 8/6/20, at 3. On May 18, 2020, Appellant filed a
“motion for summary PCRA relief,” arguing the existing record — without any
further evidentiary hearings — was sufficient to establish Trial Counsel lacked
a reasonable basis.
The PCRA court convened hearings on June 16 and July 7 and 16, 2020,
at which Appellant appeared via video. The court first denied Appellant’s
request for it to forego any testimony from Trial Counsel; the court reasoned
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that the Superior Court’s memorandum specifically remanded for an
evidentiary hearing. N.T., 6/16/20, at 17. On August 6th, the PCRA court
entered the underlying order, denying Appellant relief. The court found Trial
Counsel’s decision not to object to the transcripts had a reasonable basis,
based on the following findings of fact: (1) Trial Counsel’s trial strategy was
to show the victim consented to sexual intercourse with Appellant; (2) this
“consent strategy remained consistent throughout trial;” (3) “Counsel
emphasized to the jury that [Appellant] did not say the word ‘rape’ on the
calls and characterized them as exculpatory;” (4) instead, counsel believed
“the transcripts supported the established strategy of consent as [Appellant]
did not specifically admit to rape on the phone calls;” (5) counsel also argued
to the jury that Appellant’s “mental state at the time of the phone calls was
compromised due to the recent suicide of one of his best friends;” (6) “[i]n
her arguments, counsel importuned the jury to pay close attention to
[Appellant’s] tone of voice on the phone calls;” (7) counsel believed “that any
potentially incriminating statements made by [Appellant] on the phone calls
were not an admission of guilt, but rather an attempt to placate the upset
victim;” (8) “[c]ounsel also did not wish to ‘hide’ any evidence from the jury
that they may consider useful during their deliberations;” and (9) counsel did
not discuss her decision — not to object — with Appellant because she
“considered it a legal decision that was within her discretion.” Trial Ct. Op.,
8/6/20, at 3-5.
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On August 27, 2020, Appellant filed a motion for reconsideration, and
on September 4th, a notice of appeal. Subsequently, on September 8th, the
PCRA court denied the reconsideration motion, and directed Appellant to file
a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Appellant
complied.
II. Statement of Questions Involved
On appeal, Appellant presents two issues for our review:
I. Did the PCRA court err on an issue of first impression by failing
to apply the exception authorized in Commonwealth v. Spotz,
870 A.2d 822 (Pa. 2005) as controlling, to find [Trial Counsel’s]
proven “failure to object” under Pa.R.Crim.P. 646(C)(2)
objectively “unreasonable as a matter of law” given [Appellant’s]
circumstances, where [Trial Counsel’s] dual duty of loyal and
zealous advocacy remains limited to legitimate lawful conduct and
where no competent and effective defense-attorney would violate
the Rule’s mandatory prohibition based on both applicable legal
principles and prevailing professional norms?
II. Did the PCRA court err by concluding that [Trial Counsel] had
a reasonable basis for intentionally violating Pa.R.Crim.P.
646(C)(2) and provided effective assistance of counsel when,
objectively-viewed, that violation both results in foreseeable
prejudice from the jury placing undue-emphasis on the prohibited
transcripts and results in eight (8) total breaches of ethical-duty
imperatives under prevailing professional norms, consistent with
the rulings in Commonwealth v. McClellan, . . . 887 A.2d 291[(Pa. Super. 2005)]?
Appellant’s Brief at 5.
III. Relevant Legal Authority
We first note the relevant standard of review:
“Our review of a PCRA court’s decision is limited to examining
whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal
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error.” We view the findings of the PCRA court and the evidence
of record in a light most favorable to the prevailing party. . . .
“The PCRA court’s credibility determinations, when supported by
the record, are binding on this Court; however, we apply a de
novo standard of review to the PCRA court’s legal conclusions.”
Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (citations
omitted).
With respect to a claim that counsel provided ineffective assistance, the
Pennsylvania Supreme Court has stated:
Counsel is presumed effective, and in order to overcome that
presumption a PCRA petitioner must plead and prove that: (1) the
legal claim underlying the ineffectiveness claim has arguable
merit; (2) counsel’s action or inaction lacked any reasonable basis
designed to effectuate petitioner’s interest; and (3) counsel’s
action or inaction resulted in prejudice to petitioner.[FN]
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[FN] “[This] three-factor approach utilized in Pennsylvania derives
from our application in Commonwealth v. Pierce, . . . 527 A.2d
973, 975 (Pa. 1987), of the ‘performance and prejudice’ test
articulated by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 . . . (1984).”
____________
“With regard to ‘reasonable basis,’ the PCRA court ‘does not
question whether there were other more logical courses of action
which counsel could have pursued; rather, [the court] must
examine whether counsel’s decisions had any reasonable basis.’”
“Where matters of strategy and tactics are concerned, ‘[a] finding
that a chosen strategy lacked a reasonable basis is not warranted
unless it can be concluded that an alternative not chosen offered
a potential for success substantially greater than the course
actually pursued.’”
Mason, 130 A.3d at 618 & n.15 (some citations omitted; paragraph break
added).
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When determining what is reasonable, counsel is strongly
presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional
judgment. Strickland, [466 U.S. at 690.] Counsel’s judgment
must be reviewed from counsel’s perspective at the time and
should not be second-guessed if it falls within the realm of
professional reasonableness. Id. at 689 . . . . If an attorney fails
to inform his client of the relevant law, this failure will be
considered unreasonable.
McClellan, 887 A.2d at 300 (some citations omitted).
Finally, we reiterate the provisions of Pa.R.Crim.P. 646(C)(2): “During
deliberations, the jury shall not be permitted to have . . . a copy of any written
or otherwise recorded confession by the defendant[.]” Pa.R.Crim.P.
646(C)(2).
IV. Claim of Per se Unreasonableness Pursuant to Spotz
Appellant contends the PCRA court erred “by failing to apply our
Supreme Court’s exception authorized in Spotz[, 84 A.3d 294,] to find [Trial
Counsel’s] failure to object under Rule 646(C)(2) unreasonable as a matter of
law.” Appellant’s Brief at 28. While Appellant’s argument is rambling and at
times unclear, it appears to be that this Court should hold the following: when
the arguable merit and prejudice prongs have been established, any decision
by counsel, to not object to a Pa.R.Crim.P. 646(C)(2) violation, is per se
unreasonable, and no inquiry into “counsel’s purported strategic basis” is
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necessary.5 See Appellant’s Brief at 29. In support, Appellant cites the
mandatory language in Rule 646(C)(2) — that a jury “shall not” be permitted
to have a confession by the defendant. Id. at 34, citing Pa.R.Crim.P.
646(C)(2). Appellant also claims Trial Counsel was bound by these duties: to
object to a Rule 646(C)(2) violation, “to decide ‘what . . . objections should
be made,’” “to maintain the demanded range of competent ‘legal knowledge,’”
and “to assure the presentation of [Appellant’s] cause in the most favorable
light ‘with reasonable diligence and promptness [sic].’” Appellant’s Brief at
35-36. Finally, Appellant contends this is an “issue of first impression” and
requests publication of our decision. Id. at 1, 28-29. We conclude no relief
is due.
Appellant explains the alleged Spotz “exception” as follows:
Our Supreme Court authorizes that trial counsel’s “failure to
object [can] be deemed unreasonable as a matter of law. But,
such is the exception and not the rule[.]” . . . (hereinafter “the
Spotz exception”). Accord [Commonwealth v. Colavita, 993
A.2d 874, 896 (Pa. 2010).]
Appellant’s Brief at 31. Appellant, however, does not provide the full context
from which he extrapolates this quoted language, nor does he present any
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5 We note that in the prior PCRA appeal, Appellant argued an attorney’s
decision not to object under Pa.R.Crim.P. 646(C) was per se prejudicial.
Enagbare, 2854 EDA 2018 at 18-19. In this appeal, Appellant now argues
the same conduct by counsel should be found per se to have no reasonable
basis.
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further discussion of the Spotz case. We consider both. First, the full passage
surrounding the quoted language is as follows:
The deference to trial counsel that is required under
Strickland and Pierce is a deference that arises from an
appreciation of the art involved in the practice of law generally,
and in the defense function particularly. This is not to say that
there is no instance where the failure to object could be
deemed unreasonable as a matter of law. But, such is the
exception and not the rule; at least as a general principle,
counsel should have a chance to be heard before being
declared ineffective. Absent a hearing at which counsel’s actual
reasons for failing to object may be explored, this is not a case
where it can be said, as a matter of law, that there cannot have
been a reasonable basis for failing to object.
A reasonable basis hearing would be unnecessary, however,
if it could be determined that there is no reasonable probability
that an objection at trial would have led to a more favorable
outcome for appellee. Absent a showing of such prejudice, the
claim of ineffective assistance fails. . . .
Spotz, 870 A.2d at 833 (emphasis added; citations omitted). Additionally,
the Spotz Court in fact denied relief on the defendant’s ineffectiveness claim,
emphasizing that there was no evidentiary hearing, nor any findings of fact,
by the trial court.6 Id. at 835 (“We believe that the question is better
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6 The defendant claimed counsel “was ineffective, as a matter of law, for failing
to object to alleged prosecutorial references to appellee’s post-arrest silence.”
Spotz, 870 A.2d at 824. This claim was raised on direct appeal, as permitted
at the time. Id. at 827. While the appeal was pending, the Pennsylvania
Supreme Court issued Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002),
which generally required defendants to wait until collateral review to raise
claims of ineffective assistance. Spotz, 870 A.2d at 829. The Spotz Court
thus applied Grant and dismissed the defendant’s claim, without prejudice for
him to pursue it in a PCRA petition.
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determined by the trial court in the first instance following an evidentiary
hearing.”). It explained: “In recent years, this Court has expressed a distinct
preference for a hearing on counsel’s strategy before venturing to hold that
counsel lacked a reasonable basis for his or her actions or inactions.” Id. at
832.
When read as a whole, the Spotz decision does not support Appellant’s
claim that the Pennsylvania Supreme Court has announced a per se rule —
that establishment of the underlying-argument and prejudice prongs alone
can support a per se finding of the third prong, reasonable-basis.
Furthermore, as the PCRA court pointed out, Appellant fails to address the
prior Superior Court memorandum, which concluded that no determination on
the reasonableness prong could be made without an evidentiary hearing. See
Enagbare, 2854 EDA 2018 at 19; N.T., 6/16/20, at 11-12 (PCRA court
opining, “I think the significance is that [Appellant] is ignoring the specific
Superior Court opinion in this case. The Superior Court has found that there
is arguable merit and there could be prejudice. And they specifically
remanded this case for an evidentiary hearing to determine whether trial
counsel had a reasonable strategy.”). Appellant has cited no new authority,
post-dating this Court’s December 31, 2019, memorandum, that would
undermine the panel’s remand directives.
As Appellant’s various arguments do not persuade this Court to adopt a
per se rule, we affirm the PCRA court’s rejection of the same. Instead, we
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apply the principles relating to counsel’s reasonableness, including those in
Spotz, as set forth above. See Mason, 130 A.3d at 618 & n.15; Spotz, 870
A.2d at 833, 835; McClellan, 887 A.2d at 300.
V. Claim of Per se Unreasonableness Pursuant to McClellan
In his second issue, Appellant avers, in the alternative, that the PCRA
court erred in finding Trial Counsel’s actions had a reasonable basis, where
Trial Counsel “intentionally violated Rule 646(C)(2).” Appellant’s Brief at 43.
Appellant points out that counsel was aware of Rule 646(C)(2)’s “prohibition
of ‘confessions,’” yet did not consult with him as to whether to object. Id.Appellant relies on this Court’s statement in McClellan that “trial counsel’s
failure to comply with the Pennsylvania Rules of Criminal Procedure is not an
effective trial strategy.” Appellant’s Brief at 44, quoting McClellan, 887 A.2d
at 293. No relief is due.
Again, we consider the full context of the statement, in McClellan, that
was extrapolated by Appellant:
[W]e hold trial counsel’s failure to provide, in a timely manner,
the identity and opinion of an expert witness who tended to prove
the defendant’s alibi cannot be considered reasonable under
the totality of the circumstances. Thus, trial counsel’s failure
to comply with the Pennsylvania Rules of Criminal Procedure is not
an effective trial strategy, nor is it an example of effective
assistance of counsel under the prevailing norms of practice as
reflected by the American Bar Association.
See McClellan, 887 A.2d at 293 (emphasis added).
In McClellan, the defendant claimed her trial counsel was ineffective
for not disclosing until after trial commenced a defense expert witness, who
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would have provided an alibi defense. McClellan, 887 A.2d at 295-96. Due
to this late disclosure, the trial court precluded testimony by this expert. Id.
at 298. The defendant averred trial counsel intentionally violated Pa.R.Crim.P.
305(C),7 which required a defendant to provide notice when they intend to
present an alibi defense. Id. at 298-99. This Court stated, “[W]e must
determine if trial counsel’s conduct had any reasonable basis, considering
the totality of the circumstances.” Id. at 300 (emphasis added). We then
reasoned:
[C]ounsel were or should have been aware the trial court required
disclosure of their experts’ opinions and reports, based in
particular on their previous experience with [defense counsel’s
first expert witness.] The trial court’s unwillingness to tolerate
further failures by counsel to disclose expert information was clear
when the court ordered counsel to disclose [the first expert’s]
reports, ordered [the first expert] to submit to depositions by the
Commonwealth, and reserved the right to impose sanctions on
[the first expert]. At that point, counsel should have been aware
of the trial court’s intent to enforce Rule 305 . . . .
Therefore, we cannot conclude counsel’s justification that the
Commonwealth “could have gotten a continuance if [it] wanted a
continuance,” was reasonable, nor does it reasonably support the
decision not to disclose [the second expert witness] to the
Commonwealth. A review of the Rules of Criminal Procedure
should have revealed to counsel the likelihood [the second expert]
would not be permitted to testify, particularly in light of counsel’s
previous defiance of the court’s orders. See Pa.R.Crim.P. 305(E);
Strickland, supra. Instead, counsel’s actions exhibited either a
lack of knowledge of the Rules of Criminal Procedure, constituting
incomplete investigation into the law, or a deliberate attempt to
frustrate the Commonwealth’s right to learn of the witness,
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7 Rule 305(C) has been renumbered Rule 567, “Notice of Alibi Defense.” See
Pa.R.Crim.P. 567.
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constituting a violation of both the Rules of Professional Conduct
and the ABA Standards. See Strickland, supra (stating standard
for investigation of law); Pa.R.P.C. 3.4 (stating standard for
disclosing witnesses to Commonwealth); see also Pa.R.P.C. 3.2
Comment; ABA Standard 4-4.3(d).
McClellan, 887 A.2d at 300-01 (some citations omitted).
The McClellan Court’s statement, that it would consider the
reasonableness of trial counsel’s actions under the totality of the
circumstances, alone belies Appellant’s proposition McClellan supports a
per se finding of unreasonable counsel conduct, where there has been a
violation of a Rule of Criminal Procedure. Furthermore, the full discussion in
McClellan — which, again, Appellant ignores — demonstrates that review of
the various, unique facts presented in a particular matter is required. This is
what the prior Superior Court memorandum in this matter directed, and what
the PCRA court undertook on remand.
Here, the PCRA court opined:
. . . From the outset of the trial, the telephone calls constituted
“an integral part” of counsel’s consent defense. [D]efense counsel
in this case “argued at length” to the jury that the calls were
exculpatory. In support of this argument, defense counsel
brought the jury’s attention to the fact that [Appellant] did not
utter the word “rape” throughout the calls. Counsel characterized
[Appellant’s] repeated admissions that he “fucked up” as attempts
to placate or appease the distraught victim, rather than
confessions to any crime. [Appellant] also testified that he was in
an unstable mental state at the time of the incident due to the
recent suicide of a friend, and counsel emphasized this testimony
in her presentation to the jury. Based upon the factual and legal
circumstances of this case, this was a reasonable strategy for
counsel to adopt during the trial.
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It was therefore in accordance with this strategy for counsel
to permit the jury to view the transcripts during their
deliberations. A major portion of counsel’s defense strategy was
based upon a particular piece of evidence — the phone calls.
Considering that counsel characterized this evidence as
exculpatory, “the reason why [counsel] wanted it to go out with
the [j]ury is apparent.”
Trial Ct. Op., 8/6/20, at 13 (citation omitted).
We find no error in the PCRA court’s ruling. At the PCRA hearing, upon
Appellant’s questioning, Trial Counsel testified, “I believe the only evidence
[the Commonwealth] had against you . . . was . . . the audio tapes and
transcripts of [the victim’s] conversations[.]” N.T., 7/7/20, at 16. Trial
Counsel requested that the recordings not be played at trial, but the trial court
denied this request. Id. at 21. See also id. at 17 (“I didn’t want the jury to
hear the calls.”). Once she “knew the jury was going to hear” the recordings,
at trial she addressed them “from the beginning,” as “it wasn’t something that
[she] could have ignored.” Id. at 17-18. Responding to Appellant’s pro se
questioning, Trial Counsel stated: “After speaking with you [Appellant] about
this, [I pursued a] defense that you never said in those tapes that you raped
her, and that the only reason that you were the way you were during the calls
[was that] you were trying to basically placate [the victim] because she
sounded upset.” Id. at 17. Trial Counsel also “wanted the jury to realize [in]
reading the transcripts [what she] had said from the opening[,] that
[Appellant] never said [he] raped the victim.” Id. at 27. Trial Counsel also
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pointed out that Appellant was found not guilty of the most serious charge,
rape by forcible compulsion. Id. at 27.
The credibility of Trial Counsel’s PCRA hearing testimony was for the
PCRA court to weigh, and as the court’s findings are supported by the record,
they are binding on this Court. See Mason, 130 A.3d at 617. The court was
not to “question whether there were other more logical courses of action which
counsel could have pursued[;]” rather, the court’s task was to examine
whether counsel’s decisions had any reasonable basis. See Mason, 130 A.3d
at 618. We reiterate that counsel is presumed to be effective, and “to have
rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.” See id.; McClellan, 887 A.2d
at 300. Accordingly, we do not disturb the court’s conclusion that Trial
Counsel had a reasonable basis for not objecting to the telephone transcripts,
nor its denial of PCRA relief.
VI. SORNA Registration
At this juncture, we note that following Appellant’s jury convictions, the
trial court directed Appellant to register for life as a Tier III SORNA offender.
In the prior PCRA appeal, this Court vacated Appellant’s SORNA registration,
on the grounds that he committed the offenses before SORNA’s effective date
of December 20, 2012, and thus the retroactive application of SORNA violated
his rights under the ex post facto clauses of the United States and
Pennsylvania Constitutions. Enagbare, 2854 EDA 2018 at 21-22, citing
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Commonwealth v. Muniz, 164 A.3d 1189, 1218 (Pa. 2017). The panel relied
on Commonwealth v. Lippincott, 208 A.3d 143 (Pa. Super. 2019) (en
banc), which addressed a similarly situated defendant, who committed sexual
offenses after SORNA’s 2011 enactment but before its December 20, 2012,
effective date. Lippincott discussed that our General Assembly amended
SORNA in light of Muniz, by, inter alia, adding Subchapter I, which set forth
registration requirements for “offenders convicted of committing offenses on
or after Megan’s Law I’s effective date (April 22, 1996), but prior to SORNA’s
effective date.” Lippincott, 208 A.3d at 152 (citation omitted).
In this case, the prior Superior Court panel specifically noted that the
Lippincott Court “remanded the case to the trial court to ‘determine the
appropriate registration and reporting requirements[.]”8 Enagbare, 2854
EDA 2018 at 22. However, the panel did not direct any further SORNA
proceedings — it merely vacated the registration requirements — and on
remand, the PCRA court did not undertake any SORNA review.
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8 We note that following this Court’s remand, the Lippincott PCRA court
determined the defendant was a sexually violent predator (SVP). The
defendant appealed this decision, and this Court recently granted en banc
review on, inter alia, the question of whether the PCRA court erred in
conducting an SVP hearing, where the Superior Court vacated the SVP
designation without any remand directive for a new SVP hearing. See
Commonwealth v. Lippincott, 633 EDA 2020 (order Aug. 16, 2021). This
SVP issue is not implicated in the case sub judice.
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As the prior panel noted, “[b]ecause SORNA constitutes punishment,
and because Appellant filed a timely PCRA petition, we have the authority to
raise the legality of his sentence sua sponte.” Enagbare, 2854 EDA 2018 at
22-23, citing Commonwealth v. Balance, 203 A.3d 1027, 1031 (Pa. Super.
2018). As the instant appeal, like the last appeal, arises from the disposition
of Appellant’s timely PCRA petition, we may sua sponte address his SORNA
registration. We direct, consistent with Lippincott, the PCRA court to
determine the appropriate registration and reporting requirements.9 This
directive is not inconsistent with the prior panel’s disposition, nor the
provisions of SORNA. See 42 Pa.C.S. § 9799.23(b)(1) (“All sexual offenders
must register in accordance with this subchapter. . . . Failure by the court to
provide the information required in this section, to correctly inform a sexual
offender of the sexual offender’s obligations or to require a sexual offender to
register shall not relieve the sexual offender from the requirements of this
subchapter.”).
VII. Conclusion
For the foregoing reasons, we affirm the August 6, 2020, order of the
PCRA court denying Appellant’s PCRA claim of ineffective assistance of
counsel. Upon remand of the record to the PCRA court, the court shall
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9 See 42 Pa.C.S. § 9799.55 (setting forth registration terms).
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determine the appropriate SORNA registration and reporting requirements for
Appellant.
Oder affirmed. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/2021
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