Com. v. Jennings, M.

J-S43029-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARVIN JENNINGS :
:
Appellant : No. 222 EDA 2022
Appeal from the Judgment of Sentence Entered October 27, 2021,
in the Court of Common Pleas of Delaware County,
Criminal Division at No(s): CP-23-CR-0002750-2019.
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 7, 2023
Marvin Jennings appeals from the judgment of sentence entered
following his convictions for criminal attempt to commit statutory sexual
assault, unlawful contact with a minor, criminal attempt to commit corruption
of minors, and criminal use of a communication facility.1 We affirm his
convictions and deny his motion to stay sexual offender registration.
However, we vacate his sentence and remand for resentencing.
Beginning on April 14, 2019, Jennings chatted on a dating/messaging
application with “Casey,” who claimed to be a 14-year-old girl in Delaware
County. After Casey said that she was 14, Jennings told her that she was too
young, but he then continued to chat and exchange photographs. Their
____________________________________________
1 18 Pa.C.S.A. §§ 901(a) and 3122.1(b), 6318(a)(1), 901(a) and
6301(a)(1)(ii), and 7512(a), respectively.
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conversation was marked by sexual content, as well as Jennings’ suspicion
that Casey was not who she claimed to be.
[Jennings:] So ur willing to be with an older guy?
[Casey:] I mean idk I’m nervous but I’d try
[Jennings:] So convince me to hookup with u. If not, I’ll just let
it go
[Casey:] I mean I’m down to try it lolzzz would u wanna be with
me??? I never really done anything so I’m kind of
embarrassed
[Jennings:] To he honest. I know ur a cop,lol. I love toying with
y’all. Anytime an underage girl is on these sites, it’s a sting!
Ctfu
[Casey:] Lolzz Def not a cop r u?
[Jennings:] Hell no.
[Casey:] Bs
Ur gonna tell my mom rnt u
[Jennings:] U got one photo on ur page. Classic
Ur mom? Lol
[Casey:] Lolzz Idk I don’t have alot on my ipod lolz me and my
friend put this up for fun
[Jennings:] U haven’t convinced me out that ur not a cop and that
ur real
[Casey:] Well idk how to do that, lolzzz... but it would be cool to
be a 14 year old cop :)
Exhibit 3, at 16–17; id. at 20 (“U ever watched porn before?”); id. at 21 (“I
have no intention of talking to noone but u. If u told ur mom we was talking
I’d be in trouble”); id. at 30 (“So u wanna have sex right?”); id. at 32 (Casey:
“I guess it will hurt then” Jennings: “Not if it’s real wet. It’ll slide right in”);
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id. at 34 (“I’m horny and hard”). Eventually, Jennings and Casey agreed that
he would drive to meet her in the back of a K-Mart parking lot on April 20,
2019. He said he would drive a white, four-door Toyota.
In reality, the “Casey” account was maintained by Ridley Township
Detective Timothy Kearney. Detective Kearney briefed a law enforcement
team with descriptions of Jennings and Jennings’ vehicle, and the team waited
in the parking lot. The trial court described what happened next:
[Jennings] was originally spotted by Detective David Tyler,
of Delaware County [Criminal Investigation Division], in the rear
of the K-Mart parking lot, driving a different vehicle than the one
initially described. Detective Tyler’s attention was drawn to a red,
Chevy Yukon because the car continually circled the parking lot,
and would drive to the rear of the K-Mart and then back around
to the front of the building. The car eventually parked, and
Detective Tyler was able to drive past and observe that the driver
matched the physical description of [Jennings] that was provided
by Detective Kearney. Detective Tyler notified the other officers
that he believed the suspect came to the scene in the Yukon and
not the white Toyota. [Jennings] then circled back to the rear of
the K-Mart and the decision was made to stop the vehicle. Upon
being stopped and escorted out of the vehicle, [Jennings] blurted
out that he “knew this was a set up.”
[Jennings] was taken back to the police station to be
interviewed; Detective Kearney, Detective Tyler, and [Sergeant
Kenneth] Bellis were present in the interview room. [Jennings]
waived his Miranda rights and freely gave a statement to police
and also gave consent to allow Detectives to search his phone.
During his statement, [Jennings] told Detectives that he
traveled to the parking lot that day from Philadelphia to meet
Casey. [Jennings] told Detectives that Casey told him she was
only 14[ ]years old and that he agreed that such an age would
render a girl a child. [Jennings] admitted that he continued to
talk to Casey because people often lie on the websites about their
age and that she looked like she may be older than that from the
photos she sent. When asked if it was his intention to have sex
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with her upon arrival, [Jennings] stated “It depended on how she
looked, if she really looked her age I would probably [have]
believed her and I just, I’m good you know.” [Jennings]
essentially informed the Detectives that he was curious; maybe it
was a young girl, maybe it was an adult, or maybe it would be a
cop, but that he freely came to the parking lot that day knowing
it could be 14-year-old Casey.
Trial Court Opinion, 5/29/22, at 3–4 (record citations, footnotes, and italics
omitted).
Sergeant Bellis charged Jennings with the above offenses. On July 23,
2021, a jury found Jennings guilty on all counts. The trial court imposed an
aggregate sentence of 50 to 100 years of imprisonment, concurrent with 7
years of probation.2 On November 5, 2021, Jennings filed post-sentence
motions, which the trial court denied on December 6, 2021.
On January 6, 2022, Jennings filed a notice of appeal. Jennings
complied with Pennsylvania Rule of Appellate Procedure 1925(b). The trial
court entered its Rule 1925(a) opinion on May 29, 2022.
Jennings presents seven issues, which we reorder as follows:
1. Whether the post-sentence motion was untimely filed on
November 5, 2021 such that this appeal should be quashed?
2. Whether the evidence was insufficient to establish appellant’s
guilt for the offense of attempt to commit statutory sexual
assault beyond a reasonable doubt, in violation of appellant’s
state and federal constitutional rights?
3. Whether the evidence was insufficient to establish appellant’s
guilt for the offense of unlawful contact with a minor
____________________________________________
2 The trial court informed Jennings that he would be subject to Tier III
(lifetime) registration under Subchapter H of the Sexual Offender Registration
and Notification Act (SORNA), 42 Pa.C.S.A. §§ 9799.10–9799.42.
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(undercover officer) beyond a reasonable doubt, in violation of
appellant’s state and federal constitutional rights?
4. Whether the evidence was insufficient to establish appellant’s
guilt for the offense of attempt to commit corruption of minors
beyond a reasonable doubt, in violation of appellant’s state and
federal constitutional rights?
5. Whether the trial court imposed illegal sentences of 25 to 50
years of incarceration each for attempt to commit statutory
sexual assault and for unlawful contact with a minor?
6. Whether the trial court erred as a matter of law and violated
the discretionary aspect of sentencing when it imposed a
manifestly excessive and unreasonable life sentence of 50 to
100 years of incarceration?
7. Whether appellant’s sex offender registration pursuant to
Subchapter H of Act 29 is unconstitutional and his registration
should be stayed pending resolution of Commonwealth v.
Torsilieri, 232 A.3d 567 (Pa. 2020)?
Jennings’ Brief at 4–5.
We first address the timeliness of the appeal. Our initial review of the
record indicated that judgment of sentence was imposed on October 25, 2021.
Thus, Jennings’ post-sentence motion (filed November 5, 2021) and his notice
of appeal (filed January 6, 2022) would be untimely. See Commonwealth
v. Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015) (citing Commonwealth
v. Green, 862 A.2d 613, 618 (Pa. Super. 2004) (en banc)). Accordingly, we
directed Jennings to show cause why his appeal should not be quashed. He
complied. After review of Jennings’ response and the record, we are satisfied
that judgment of sentence was entered on October 27, 2021, and the docket
entry dated October 25, 2021 was erroneous.3 Therefore, his post-sentence
____________________________________________
3 We have amended the case caption accordingly.
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motion and notice of appeal were timely filed, and we decline to quash this
appeal.
Turning to the substantive issues, Jennings challenges the sufficiency of
the evidence to support three of his convictions. Because he incorporates the
same sufficiency argument for all three, we will address these claims together.
With respect to criminal attempt to commit statutory sexual assault, Jennings
argues that there was insufficient evidence to establish (1) his belief that
Casey was younger than 16, (2) his intent to engage in sexual intercourse,
and (3) a substantial step towards engaging in sexual intercourse. Jennings’
Brief at 22–29. With respect to unlawful contact with a minor, he challenges
the evidence of his (1) belief that Casey was actually underage and (2) intent
to engage in sexual intercourse. Id. at 29–30. And with respect to criminal
attempt to commit corruption of minors, he argues the evidence does not
prove that he (1) believed Casey to be underage, (2) intended to engage in
sexual intercourse, and (3) attempted to commit the offense, based on his
lack of intent to engage in sexual intercourse. Id. at 31–32.
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying [the above] test,
we may not weigh the evidence and substitute our judgment for
a fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
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circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt by
means of wholly circumstantial evidence. Moreover, in applying
the above test, the entire record must be evaluated and all
evidence received must be considered. Finally, the [trier] of
fact[,] while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part or none
of the evidence..
Commonwealth v. Williams, 255 A.3d 565, 578–79 (Pa. Super. 2021)
(quoting Commonwealth v. Smith, 97 A.3d 782, 790 (Pa. Super. 2014)).
Notably, proof of intent often depends on circumstantial evidence and the
inferences drawn from acts, conduct, or attendant circumstances.
Commonwealth v. Fortune, 68 A.3d 980, 984 (Pa. Super. 2013) (citing
Commonwealth v. Thomas, 65 A.3d 939, 944 (Pa. Super. 2013)).
The law defines criminal attempt as follows: “A person commits an
attempt when, with intent to commit a specific crime, he does any act which
constitutes a substantial step toward the commission of that crime.” 18
Pa.C.S.A. § 901(a). Criminal attempt requires the specific intent to commit
the underlying crime: the conscious object to engage in the proscribed conduct
and an awareness, belief, or hope of the attendant circumstances.
Commonwealth v. Palmer, 192 A.3d 85, 88 (Pa. Super. 2018) (citing 18
Pa.C.S.A. § 302(b)(1)). Meanwhile, the requirement of a substantial step
“concentrat[es] on the acts the defendant has done and does not . . . focus
on the acts remaining to be done before the actual commission of the crime.”
Commonwealth v. Cannavo, 199 A.3d 1282, 1291–92 (Pa. Super. 2018)
(quoting In re R.D., 44 A.3d 657, 678 (Pa. Super. 2012)).
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Statutory sexual assault is defined as follows: “A person commits a
felony of the first degree when that person engages in sexual intercourse with
a complainant under the age of 16 years and that person is 11 or more years
older than the complainant and the complainant and the person are not
married to each other.” 18 Pa.C.S.A. § 3122.1(b). In addition to the
proscribed conduct of sexual intercourse, this offense requires proof of
attendant circumstances: the complainant is under 16, the defendant is more
than 11 years older, and they are not married to each other. See
Commonwealth v. Duffy, 832 A.2d 1132, 1138–39 (Pa. Super. 2003).
Therefore, to sustain a conviction for criminal attempt to commit
statutory sexual assault, there must be sufficient evidence to prove that the
defendant (1) had the conscious object to engage in sexual intercourse with
the complainant, (2) had an awareness, belief, or hope of the attendant
circumstances of the complainant’s age and marital status, and (3) did an act
that constitutes a substantial step toward committing the underlying crime.
See Commonwealth v. Crabill, 926 A.2d 488, 491 (Pa. Super. 2007)
(discussing the mens rea elements of an attempted sexual offense).
Unlawful contact with a minor is defined in relevant part as:
A person commits an offense if he is intentionally in contact with
a minor, or a law enforcement officer acting in the performance of
his duties who has assumed the identity of a minor, for the
purpose of engaging in an activity prohibited under . . . (1) Any of
the offenses enumerated in Chapter 31 (relating to sexual
offenses.
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18 Pa.C.S.A. § 6318. The statute prohibits communicating with a minor (or,
as here, a law enforcement officer) for the purpose of carrying out enumerated
sexual acts. Commonwealth v. Davis, 225 A.3d 582, 587 (Pa. Super. 2019)
(citing Commonwealth v. Rose, 960 A.2d 149, 152–53 (Pa. Super. 2008)).
It does not require the defendant to commit those sexual acts.
Commonwealth v. Aikens, 168 A.3d 137, 144–45 (Pa. 2017). The evidence
must prove that the defendant (1) was intentionally in contact with a minor
or law enforcement officer who assumed the identity of a minor (2) for the
purpose of engaging in a Chapter 31 offense. Aikens, 168 A.3d at 138.
Corruption of minors, as charged here, is defined:
Whoever, being of the age of 18 years and upwards, by any course
of conduct in violation of Chapter 31 . . . corrupts or tends to
corrupt the morals of any minor less than 18 years of age, or who
aids, abets, entices or encourages any such minor in the
commission of an offense under Chapter 31 commits a felony of
the third degree.
18 Pa.C.S.A. § 6301(a)(1)(ii). The statutory elements of this underlying
offense are (1) a defendant over 18, who (2) commits a course of conduct (3)
in violation of Chapter 31 (4) that corrupts or tends to corrupt the morals of
a minor. Interest of J.C., 286 A.3d 288, 294 (Pa. Super. 2022) (over 18);
Commonwealth v. Sampolski, 89 A.3d 1287, 1289 (Pa. Super. 2014)
(course of conduct); Commonwealth v. Baker-Myers, 255 A.3d 223, 235
(Pa. 2021) (violation of Chapter 31); Commonwealth v. Mumma, 414 A.2d
1026, 1030 (Pa. 1980) (corruption). Notably, the statute does not require
proof of actual corruption but rather prohibits conduct that “tends to corrupt
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the morals of any minor.” Mumma, 414 A.2d at 1030 (citing
Commonwealth v. Davison, 364 A.2d 425, 426 n.1 (Pa. Super. 1976)). We
have previously held that an adult having sexual intercourse with a young
teenager is the sort of conduct that would qualify, even if the intercourse is
consensual. Commonwealth v. Decker, 698 A.2d 99, 100–02 (Pa. Super.
1997).4
Thus, for criminal attempt to commit corruption of minors, the evidence
must show that the defendant (1) was over 18, (2) had the conscious object
to engage in prohibited conduct, such as having sexual intercourse with a 14-
year-old, and (3) did an act that constitutes a substantial step toward
committing the underlying crime. Crabill, supra.
This Court confronted analogous facts before, as where a 44-year-old
defendant contacted an undercover officer posing as a 15-year-old girl on an
Internet chat room and arranged to meet for oral sex. Commonwealth v.
Zingarelli, 839 A.2d 1064, 1067–68 (Pa. Super. 2003). He was arrested
after reserving a motel room, buying wine and condoms, and driving two and
a half hours to meet the purported girl. Id. at 1068. We held that these
actions constituted a substantial step toward committing statutory sexual
assault and therefore affirmed his conviction for criminal attempt. Id. at
____________________________________________
4 A prior version of Section 6301 did not require the defendant’s conduct to
violate Chapter 31. Decker, 698 A.2d at 100 (quoting 18 Pa.C.S.A. § 6301
(prior version)). The 37-year-old defendant in Decker had consensual sexual
intercourse with a 15-year-old, which was not otherwise prohibited at the
time. Id. at 100 n.2. We recognize Decker’s continued vitality in its holding
that lack of consent is not an element of corruption of minors.
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1071–72; see also Commonwealth v. Jacob, 867 A.2d 614, 619 (Pa.
Super. 2005) (finding a substantial step to commit a sexual offense where a
defendant conversed with an undercover officer about sex and then arrived at
an arranged location to meet her).
Here, the evidence was sufficient to prove every element of Jennings’
convictions. Jennings’ messages are consistent with a conscious object to
engage in sexual intercourse with Casey. E.g., Exhibit 3, at 26 (“Whatever I
want to do u not ready for. I see too many guys going to jail for fucking these
lil teenagers”); id. at 30 (“So u wanna have sex right?”); id. at 32 (Casey: “I
guess it will hurt then” Jennings: “Not if it’s real wet. It’ll slide right in”); id.
at 34 (“I’m horny and hard”). This intent is further reflected by his inquiries
into Casey’s sexual experience and fantasies, his commands to wear tights
without underwear or a bra, and his action of driving to the parking lot to meet
her. The jury was free to find from this evidence that Jennings intended to
have sexual intercourse with Casey.
Regarding the attendant circumstances of Casey’s age, Casey advised
Jennings that she was 14 years old from the time of their first conversation.
Jennings acknowledged this in his messages. E.g., id. at 19 (“I’m a grown
man, u a lil teenager. Tell me what u want [¶] U comfortable being alone
with a grown man?”); id. at 25 (“I’m gonna delete this app because I don’t
want to get in trouble for messing with a 14yo”). The jury could find from
these messages that Jennings believed that Casey was in fact a 14-year-old
girl.
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As necessary to prove a criminal attempt, driving to meet an underage
girl is a substantial step towards engaging in sexual intercourse. Zingarelli,
supra; Jacob, supra. The jury could find from Jennings’ driving to the
parking lot where he had arranged to meet Casey that he had taken a
substantial step.
In finding the evidence to be sufficient at all counts, we reject Jennings’
assertions that the content of his messages reflects only a suspicion that
Casey is a police officer. Direct evidence, such as Jennings stating what he
wanted to do, is not required to prove intent. Fortune, supra. Rather, the
sexual nature of the subjects discussed, combined with Jennings’ action of
driving to the parking lot, support the reasonable inference that Jennings
intended to have sexual intercourse. Specific intent can be proven by “hope[]”
of an attendant circumstance. 18 Pa.C.S.A. § 302(b)(1)(ii).
Despite Jennings’ self-serving statements to police that he did not
believe Casey to be 14, the evidence was sufficient to show that Jennings
drove to the parking lot with the hope that Casey was who she claimed to be.
His ostensible disbelief over Casey’s identity, like his choice to drive a different
car than he had said he would, are more consistent with Jennings’ caution in
attempting an activity that he knew to be illegal than with the genuine
expectation that he was meeting an undercover officer. Although the jury
could have found Jennings’ mental state as he now argues, the jury was also
free to find that Jennings had the specific intent required for the charged
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offenses. Based on our standard of review for a challenge to the sufficiency
of the evidence, we affirm Jennings’ convictions.
We next address Jennings’ challenges to the legality of his sentence.
These are questions of law, for which our scope of review is plenary and our
standard of review is de novo. Commonwealth v. Hill, 238 A.3d 399, 409–
10 (Pa. 2020). Jennings’ legality claims concern the “three strikes” law for
recidivist sexual offenders, which provides:
(a) Mandatory sentence.--
(1) Any person who is convicted in any court of this
Commonwealth of an offense set forth in section 9799.14 (relating
to sexual offenses and tier system) shall, if at the time of the
commission of the current offense the person had previously been
convicted of an offense set forth in section 9799.14 or an
equivalent crime under the laws of this Commonwealth in effect
at the time of the commission of that offense or an equivalent
crime in another jurisdiction, be sentenced to a minimum
sentence of at least 25 years of total confinement,
notwithstanding any other provision of this title or other statute
to the contrary. Upon such conviction, the court shall give the
person oral and written notice of the penalties under paragraph
(2) for a third conviction. Failure to provide such notice shall not
render the offender ineligible to be sentenced under paragraph
(2).
(2) Where the person had at the time of the commission of the
current offense previously been convicted of two or more offenses
arising from separate criminal transactions set forth in section
9799.14 or equivalent crimes under the laws of this
Commonwealth in effect at the time of the commission of the
offense or equivalent crimes in another jurisdiction, the person
shall be sentenced to a term of life imprisonment, notwithstanding
any other provision of this title or other statute to the contrary.
Proof that the offender received notice of or otherwise knew or
should have known of the penalties under this paragraph shall not
be required.
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(b) Mandatory maximum.--An offender sentenced to a
mandatory minimum sentence under this section shall be
sentenced to a maximum sentence equal to twice the mandatory
minimum sentence, notwithstanding 18 Pa.C.S. § 1103 (relating
to sentence of imprisonment for felony) or any other provision of
this title or other statute to the contrary.
(c) Proof of sentencing.--The provisions of this section shall not
be an element of the crime, and notice thereof to the defendant
shall not be required prior to conviction, but reasonable notice of
the Commonwealth’s intention to proceed under this section shall
be provided after conviction and before sentencing. The
applicability of this section shall be determined at sentencing. The
sentencing court, prior to imposing sentence on an offender under
subsection (a), shall have a complete record of the previous
convictions of the offender, copies of which shall be furnished to
the offender. If the offender or the attorney for the
Commonwealth contests the accuracy of the record, the court
shall schedule a hearing and direct the offender and the attorney
for the Commonwealth to submit evidence regarding the previous
convictions of the offender. The court shall then determine, by a
preponderance of the evidence, the previous convictions of the
offender and, if this section is applicable, shall impose sentence in
accordance with this section. Should a previous conviction be
vacated and an acquittal or final discharge entered subsequent to
imposition of sentence under this section, the offender shall have
the right to petition the sentencing court for reconsideration of
sentence if this section would not have been applicable except for
the conviction which was vacated.
(d) Authority of court in sentencing.--There shall be no
authority in any court to impose on an offender to which this
section is applicable any lesser sentence than provided for in
subsections (a) and (b) or to place the offender on probation or
to suspend sentence. Nothing in this section shall prevent the
sentencing court from imposing a sentence greater than that
provided in this section. Sentencing guidelines promulgated by
the Pennsylvania Commission on Sentencing shall not supersede
the mandatory sentences provided in this section.
42 Pa.C.S.A. § 9718.2(a)–(d).
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Jennings’ first legality challenge is that defects in his sentencing
proceeding preclude the application of Section 9718.2, rendering his sentence
illegal. Jennings’ Brief at 32–34. He challenges the trial court’s failure to state
on the record that it was applying Section 9718.2 or to provide him a copy of
his prior record, as well as the Commonwealth’s failure to provide an exhibit
of his prior conviction. He notes that the court did not give notice of the
penalties for a third conviction.
Jennings’ second legality challenge is that Section 9718.2(a)(1) requires
only one mandatory 25-to-50-year sentence for multiple offenses that were
not part of the same criminal episode. Id. at 34–35 (citing Commonwealth
v. Fields, 107 A.3d 738, 744 (Pa. 2014)). Based on an ambiguity in his
charging documents, he argues that he should receive the benefit of treating
the attempted statutory sexual assault and unlawful contact with a minor as
separate criminal episodes.
The Commonwealth responds that Jennings was aware of his prior
conviction and of the applicability of Section 9718.2. Commonwealth’s Brief
at 25–26. It argues that Fields does not apply to Section 9718.2, but even if
it did, Jennings’ crimes all constituted one criminal episode. Id. at 26–28.
We are constrained to remand for resentencing based on Jennings’ first
legality challenge. We have held that Section 9718.2 is subject to the same
interpretation as the “three strikes” law for recidivist violent offenders, 42
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Pa.C.S.A. § 9714.5 Commonwealth v. Helsel, 53 A.3d 906, 916 (Pa. Super.
2012). The process required under Section 9714(d), identical to Section
9718.2(c), is “essential” to sentencing:
____________________________________________
5 Section 9714 provides, in relevant part:
(a) Mandatory sentence.--
(1) Any person who is convicted in any court of this
Commonwealth of a crime of violence shall, if at the time of the
commission of the current offense the person had previously been
convicted of a crime of violence, be sentenced to a minimum
sentence of at least ten years of total confinement,
notwithstanding any other provision of this title or other statute
to the contrary. . . .
(2) Where the person had at the time of the commission of the
current offense previously been convicted of two or more such
crimes of violence arising from separate criminal transactions, the
person shall be sentenced to a minimum sentence of at least 25
years of total confinement, notwithstanding any other provision of
this title or other statute to the contrary. . . .
* * *
(d) Proof at sentencing.--Provisions of this section shall not be
an element of the crime and notice thereof to the defendant shall
not be required prior to conviction, but reasonable notice of the
Commonwealth’s intention to proceed under this section shall be
provided after conviction and before sentencing. The applicability
of this section shall be determined at sentencing. The sentencing
court, prior to imposing sentence on an offender under subsection
(a), shall have a complete record of the previous convictions of
the offender, copies of which shall be furnished to the offender. If
the offender or the attorney for the Commonwealth contests the
accuracy of the record, the court shall schedule a hearing and
direct the offender and the attorney for the Commonwealth to
submit evidence regarding the previous convictions of the
offender. The court shall then determine, by a preponderance of
the evidence, the previous convictions of the offender and, if this
(Footnote Continued Next Page)
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It is essential that the sentencing court have before it Norris’s
complete record of previous convictions, that Norris be provided
with the same, and that the sentencing court make a
determination of Norris’s previous convictions based on a
preponderance of the evidence prior to determining the
applicability of the mandatory sentencing provisions of section
9714. A verbal recitation by the Commonwealth of what it
considers to be Norris’s prior “strikes,” without the court having
the benefit of Norris’s written record, is simply insufficient for
purposes of section 9714(d).
Commonwealth v. Norris, 819 A.2d 568, 576 (Pa. Super. 2003).
Here, Jennings was not given a copy of his prior record. Although there
is no dispute that he was aware of his prior convictions and the
Commonwealth’s intention to seek a mandatory minimum sentence, this
sentencing procedure was insufficient for purposes of Section 9718.2(c). Id.Therefore, we will vacate and remand for the sentencing court to comply with
the procedures of Section 9718.2.
As to Jennings’ second legality challenge, the court’s authority to impose
mandatory sentences for multiple offenses does not depend on whether those
offenses were part of the same criminal episode. The issue arises from cases
interpreting the second- and third-strike provisions of Section 9714. Our
____________________________________________
section is applicable, shall impose sentence in accordance with this
section. Should a previous conviction be vacated and an acquittal
or final discharge entered subsequent to imposition of sentence
under this section, the offender shall have the right to petition the
sentencing court for reconsideration of sentence if this section
would not have been applicable except for the conviction which
was vacated.
42 Pa.C.S.A. § 9714(a), (d).
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supreme court first held that a third-strike offender who commits multiple
crimes of violence is subject to only one mandatory minimum sentence for his
third strike. Commonwealth v. McClintic, 909 A.2d 1241, 1252 (Pa. 2006).
It then held that a second-strike offender who commits multiple crimes of
violence is subject to a mandatory sentence for each as part of his second
strike. Fields, 107 A.3d at 744.
These rules apply to Section 9718.2(a), which has operative language
mirroring that of Section 9714(a). Helsel, supra. However, the holding of
Fields depended on the offenses being part of the second strike, not whether
those offenses were part of the same criminal episode. Fields, 107 A.3d at
744 (“[Section 9714(a)(1)] requires that a second-strike offender be
sentenced to the prescribed minimum term of incarceration for each conviction
of a crime of violence that is part of the second strike.”); see also
Commonwealth v. Griffin, 207 A.3d 827, 833 (Pa. 2019) (applying Fields
to any case “where a defendant is convicted of multiple current offenses as
part of a second strike”). Here, if Jennings was properly sentenced as a
second-strike offender under Section 9718.2(a)(1), the imposition of a
mandatory sentence for each registrable offense is required by Fields
regardless of whether the offenses were part of the same criminal episode.6
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6Based on Jennings’ prior record, Trial Court Opinion, 5/29/22, at 6, he would
be properly sentenced as a second-strike offender on Counts 1 and 2 in the
present case. Fields, 107 A.3d at 744 n.5.
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Because we remand based on Jennings’ legality-of-sentence claim, we
do not address his challenge to the discretionary aspects of his sentence.
In Jennings’ final issue, he asks this Court to stay his registration as a
sexual offender pending the Pennsylvania Supreme Court’s determination
whether Subchapter H of SORNA is unconstitutional. Jennings’ Brief at 46–52
(citing Commonwealth v. Melvin, 79 A.3d 1195, 1200 (Pa. Super. 2013)).
The Commonwealth responds that the proper procedure in this case is to
remand for development of an evidentiary record for the trial court to rule on
the constitutional issue. Commonwealth’s Brief at 34–36 (citing, inter alia,
Commonwealth v. Asher, 244 A.3d 27 (Pa. Super. 2020)).
To obtain a stay from this Court, Jennings is required to:
make a substantial case on the merits and show that without the
stay, irreparable injury will be suffered. Additionally, before
granting a request for a stay, the court must be satisfied the
issuance of the stay will not substantially harm other interested
parties in the proceedings and will not adversely affect the public
interest.
Melvin, 79 A.3d at 1200 (quoting Maritrans G.P., Inc. v. Pepper, Hamilton
& Scheetz, 573 A.2d 1001, 1003 (Pa. 1990)).
We deny Jennings’ request because he has not made a substantial case
on the merits. Jennings’ post-sentence motion and brief provide the same
claims and arguments as in Commonwealth v. Torsilieri, 232 A.3d 567 (Pa.
2020).7 This Court has held that it “will not venture beyond our Supreme
____________________________________________
7 Following remand in Torsilieri, the trial court again ruled that Subchapter
H of SORNA is unconstitutional. The Commonwealth appealed, and the case
is now pending at Docket Number 97 MAP 2022.
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Court’s holding in Torsilieri,” which did not reach a conclusion on the
constitutionality of Subchapter H of SORNA. Commonwealth v. Wolf, 276
A.3d 805, 813 (Pa. Super. 2022). We decline to go beyond the holding of
Torsilieri here and thus deny Jennings’ request for a stay.
Regarding the Commonwealth’s suggestion that we remand for the
parties to develop the record, we agree that this Court has done so in other
cases. E.g., Commonwealth v. Boyd, ___ A.3d ____, ____, 2022 PA Super
224 (Pa. Super. 2022); Asher, supra. However, Jennings, the appellant in
this case, has not requested such a remand. Jennings’ Brief at 49. We
therefore decline to do so.
Convictions affirmed. Judgment of sentence vacated. Motion to stay
SORNA registration denied. Case remanded for resentencing.
Judge Dubow joins this Memorandum.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/7/2023
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