Com. v. Snide, A.

J-S67034-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ADAM DWIGHT SNIDE :
:
Appellant : No. 2102 MDA 2018
Appeal from the Judgment of Sentence Entered July 2, 2018
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0003511-2017
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 31, 2020
Appellant Adam Dwight Snide appeals the judgment of sentence entered
by the Court of Common Pleas of Luzerne County after Appellant pled guilty
to two counts of dissemination of child pornography and one hundred counts
of possession of child pornography.1 Appellant challenges the constitutionality
of his registration requirements under Pennsylvania’s Sex Offender
Registration and Notification Act (“SORNA”), 42 Pa.C.S.A. § 9799.10 et seq.,
as modified by Acts 10 and 29 of 20182 (“SORNA II”). After careful review,
we affirm the judgment of sentence.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 6312(c) and (d), respectively.
2 Act of Feb. 21, 2018, P.L. 27, No. 10 (Act 10); Act of June 12, 2018, P.L.
140, No. 29 (Act 29).
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On April 11, 2018, Appellant pled guilty to the aforementioned charges,
admitting he had disseminated two images of minor children being sexually
abused by adults and had in his possession over one hundred images/videos
of similar child pornography. The criminal complaint states that Appellant
disseminated and possessed child pornography from October 9, 2016 to
August 1, 2017.
At the plea hearing, the trial court notified Appellant that he would be
required to register under SORNA and submit to an evaluation by the Sexual
Offenders’ Assessment Board (SOAB). Appellant confirmed he reviewed the
plea agreement and understood he could be “subject to certain registration
requirements that could include anything up to lifetime reporting” under
SORNA. Notes of Testimony (N.T.), Plea Hearing, 4/11/18, at 4.
On July 2, 2018, Appellant proceeded to a sentencing hearing, during
which he asked for leniency, expressed remorse for his crimes, and noted he
had sought therapy for sex offender rehabilitation. N.T., Sentencing, 7/2/18,
at 5-9. While the prosecution acknowledged Appellant cooperated with
investigators, the arresting detective emphasized how troubled he was by the
violent nature of the images and videos that Appellant disseminated and
possessed that depicted infants and young children placed in bondage and
forced to participate in sexual acts with adults. Id. at 10. As Appellant
admitted downloading such images for over twenty years, the prosecutor
expressed skepticism in Appellant’s assertion that he had been rehabilitated
with a short period of therapy. Id. at 15.
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At the conclusion of the hearing, the trial court sentenced Appellant to
an aggregate term of incarceration of three to fifteen years’ imprisonment to
be followed by twenty-one years of consecutive probation. Noting that the
SOAB found Appellant was not a Sexually Violent Predator (SVP), the trial
court ordered Appellant to register as a Tier II sex offender for twenty-five
years under SORNA II. See 42 Pa.C.S.A. §§ 9799.14(c)(4); 9799.15(a)(2).
On July 10, 2018, Appellant filed a motion to modify his sentence. On
July 12, 2018, Appellant filed a supplemental post-sentence motion in which
he challenged the application of SORNA II’s registration and reporting
requirements. On October 3, 2018, the trial court held a hearing on the post-
sentence motion but held its ruling in abeyance to allow the parties to submit
briefs. The trial court also granted the defense’s request for a thirty-day
extension for the resolution of Appellant’s post-sentence motions. See
Pa.R.Crim.P. 720(B)(3)(b).
On December 12, 2018, the trial court entered an order denying
Appellant’s post-sentence motions. On December 17, 2018, Appellant filed a
notice of appeal. Appellant subsequently complied with the trial court’s
direction to file a Concise Statement of Errors Complained of on Appeal
pursuant to Pa.R.A.P. 1925(b).
Appellant raises the following issue for review in his statement of
question presented section of his appellate brief:
Whether SORNA II contravenes the 5th, 6th and 14th Amendments
of the United States Constitution and Pennsylvania Constitution as
a criminal punishment, without appropriate due process requiring
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that each fact necessary to support imposition of sentence over
which the court has no control is submitted to a jury and proven
beyond a reasonable doubt? Apprendi v New Jersey, 530 U.S.
466 (2000) and Alleyne v. United States, 570 U.S. 99 (2013)?
Appellant’s Brief, at 2.
While Appellant raises one general issue in the question presented
section of his appellate brief, Appellant includes several claims in the
argument section that is not divided into relevant subheadings. Appellant
claims his registration requirements under SORNA II violate his due process
rights in that he was subjected to an “irrebuttable presumption that he poses
a high risk of committing additional sexual offenses [which] deprives him of
his fundamental right to reputation.” 1925(b) statement, at 2.
Appellant also argues that his registration requirements under SORNA
II constitute criminal punishment and thus, must comply with all constitutional
and statutory protections related to sentencing. As such, Appellant contends
that his registration requirements illegally imposed increased punishment in
excess of his term of imprisonment and added an element or fact which was
never presented to a fact finder in violation of Apprendi and Alleyne.
Appellant’s Brief, at 16.
In doing so, Appellant has not complied with our rules of appellate
procedure. Rule 2116(a) specifically provides that “[n]o question will be
considered unless it is stated in the statement of questions involved or is fairly
suggested thereby.” Pa.R.A.P. 2116(a). In addition, our rules of appellate
procedure require that “[t]he argument shall be divided into as many parts as
there are questions to be argued; and shall have at the head of each part – in
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distinctive type or in type distinctively displayed – the particular point to be
treated therein, followed by such discussion and citation of authorities as are
deemed pertinent.” Pa.R.A.P. 2119(a).
This Court has generally found that an appellant’s failure to include an
issue in the statement of questions presented section of his brief results in
waiver of that argument. Commonwealth v. Hodge, 144 A.3d 170, 172 n.4
(Pa.Super. 2016) (quoting Pa.R.A.P. 2116(a)). However, “such a defect may
be overlooked where [the] appellant's brief suggests the specific issue to be
reviewed and [the] appellant's failure does not impede our ability to address
the merits of the issue.” Werner v. Werner, 149 A.3d 338, 341 (Pa.Super.
2016).
While Appellant did not list his specific arguments in his statement of
questions presented section of his brief, Appellant did set forth each claim in
his post-sentence motion, his 1925(b) statement, and in the argument section
of his appellate brief. As this briefing deficiency does not hamper our ability
to review his claims, we proceed to review the merits of the appeal.
Our standard of review for Appellant’s challenges to SORNA’s
constitutionality is as follows:
[w]hen an appellant challenges the constitutionality of a statute,
the appellant presents this Court with a question of law. See
Commonwealth v. Atwell, 785 A.2d 123, 125 (Pa.Super. 2001)
(citation omitted). Our consideration of questions of law is
plenary. See id., 785 A.2d at 125 (citation omitted). A statute is
presumed to be constitutional and will not be declared
unconstitutional unless it clearly, palpably, and plainly violates the
constitution. See Commonwealth v. Etheredge, 794 A.2d 391,
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396 (Pa.Super. 2002) (citations omitted). Thus, the party
challenging the constitutionality of a statute has a heavy burden
of persuasion. See id., 794 A.2d at 396 (citation omitted).
Commonwealth v. Cosby, 224 A.3d 372, 431 (Pa.Super. 2019) (quoting
Commonwealth v. Howe, 842 A.2d 436, 441 (Pa.Super. 2004)).
In evaluating Appellant’s claims, it is helpful to review this Court’s
summary of the legislative history of Pennsylvania’s schemes for sex offender
registration and the precedent reviewing their constitutionality:
[c]ourts have also referred to SORNA as the Adam Walsh
Act. SORNA [was] the General Assembly's fourth enactment
of the law commonly referred to as Megan's Law. Megan's
Law I, the Act of October 24, 1995, P.L. 1079 (Spec. Sess.
No. 1), was enacted on October 24, 1995, and became
effective 180 days thereafter. Megan's Law II was enacted
on May 10, 2000[,] in response to Megan's Law I being ruled
unconstitutional by our Supreme Court in Commonwealth
v. Williams, ... 557 Pa. 285, 733 A.2d 593 ( [Pa.] 1999).
Our Supreme Court held that some portions of Megan's Law
II were unconstitutional in Commonwealth v. Gomer
Williams, ... 574 Pa. 487, 832 A.2d 962 ([Pa.] 2003), and
the General Assembly responded by enacting Megan's Law
III on November 24, 2004. The United States Congress
expanded the public notification requirements of state
sexual offender registries in the Adam Walsh Child
Protection and Safety Act of 2006, 42 U.S.C. §§ 16901-
16945, and the Pennsylvania General Assembly responded
by passing SORNA [I] on December 20, 2011[,] with the
stated purpose of “bring[ing] the Commonwealth into
substantial compliance with the Adam Walsh Child
Protection and Safety Act of 2006.” 42 Pa. C.S. §
9799.10(1). SORNA [I] went into effect a year later on
December 20, 2012. Megan's Law III was also struck down
by our Supreme Court for violating the single subject rule of
Article III, Section 3 of the Pennsylvania Constitution.
[Commonwealth] v. Neiman, ... 624 Pa. 53, 84 A.3d 603,
616 ( [Pa.] 2013). However, by the time it was struck down,
Megan's Law III had been replaced by SORNA [I].
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M.S. v. Pennsylvania State Police, 212 A.3d 1142, 1143 n.1
(Pa.Cmwlth. 2019) (quoting Dougherty v. Pennsylvania State
Police, 138 A.3d 152, 155 n.8 (Pa. Cmwlth. 2016) (en banc)).
SORNA I also failed to withstand constitutional scrutiny. In
Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017),
cert. denied, Pennsylvania v. Muniz, ––– U.S. ––––, 138 S. Ct.
925, 200 L. Ed. 2d 213 (2018), our Supreme Court held that
1) SORNA's registration provisions constitute punishment
notwithstanding the General Assembly's identification of the
provisions as nonpunitive; 2) retroactive application of
SORNA's registration provisions violates the federal ex post
facto clause; and 3) retroactive application of SORNA's
registration provisions also violates the ex post facto clause
of the Pennsylvania Constitution.
Id. at 1193. The Muniz Court deemed SORNA I's registration
provisions to be punitive by applying the seven-factor test
established in Kennedy v. Mendoza–Martinez, 372 U.S. 144,
83 S. Ct. 554, 9 L. Ed. 2d 644 (1963).
Cosby, 224 A.3d at 429.
In response to Muniz, the General Assembly enacted legislation to
amend SORNA. See Act of Feb. 21 2018, P.L. 27, No. 10 (Act 10), later
reenacted by Act of June 12, 2018, P.L. 1952, No. 29 (Act 29) (collectively,
“SORNA II”).3 Our Supreme Court has clarified that:
Act 10 split SORNA, which was previously designated in the
Sentencing Code as Subchapter H into two subchapters. Revised
____________________________________________
3 The Legislature also passed these acts to respond to Commonwealth v.
Butler, 173 A.3d 1212 (Pa.Super. 2017) (Butler I), in which a panel of this
Court deemed SORNA’s SVP designation process to be unconstitutional as
violative of Apprendi and Alleyne as it increased a defendant’s criminal
penalty without requiring the factfinder to make relevant findings beyond a
reasonable doubt. Thereafter, the Supreme Court reversed the decision,
finding SORNA’s registration and notification requirements applicable to SVPs
do not constitute criminal punishment and as a result, the SVP designation
process does not violate Apprendi or Alleyne. Commonwealth v. Butler,
--- Pa.---, 226 A.3d 972 (Pa. 2020) (“Butler II”).
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Subchapter H applies to crimes committed on or after December
20, 2012, whereas Subchapter I applies to crimes committed after
April 22, 1996, but before December 20, 2012. In essence,
Revised Subchapter H retained many of the provisions of
SORNA, while Subchapter I imposed arguably less onerous
requirements on those who committed offenses prior to December
20, 2012, in an attempt to address this Court's conclusion in
[Commonwealth v.] Muniz, 164 A.3d 1189 (Pa. 2017)] that
application of the original provisions of SORNA to these offenders
constituted an ex post facto violation.
Commonwealth v. Torsilieri, ---Pa.---, 232 A.3d 567, 580–81 (2020). As
Appellant pled guilty to committing offenses after December 20, 2012, he was
required to register under Revised Subchapter H and ex post facto principles
do not apply.
While the instant appeal was pending, our Supreme Court filed its
decision in Torsilieri, in which the Commonwealth appealed the trial court’s
declaration that Revised Subchapter H of SORNA was unconstitutional as
violative of numerous protections of the United States and Pennsylvania
Constitutions. This Court summarized the decision in Torsilieri as follows:
The defendant expressly challenged the presumption in
SORNA II that all sex offenders are dangerous and pose a high
risk of recidivism, necessitating registration and notification
procedures to protect the public from recidivist sex offenders. The
defendant further claimed the presumption was not supported by
current research and threatens public safety by preventing the re-
integration of offenders as law-abiding citizens. Although the
Commonwealth argued that a post-sentence motion hearing was
not the proper forum to adjudicate a challenge to the
constitutionality of a statute, the trial court permitted the
defendant to introduce affidavits and supporting documents of
three experts concluding that sex offenders generally have low
recidivism rates and questioning the effectiveness of sex offender
registration systems. The Commonwealth did not offer any
rebuttal expert testimony or documents regarding the defendant's
expert witnesses. [Id. at ---, 232 A.3d at 573-74.]
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The trial court declared the provisions of Revised
Subchapter H applicable to the defendant unconstitutional based
largely on the scientific evidence the defendant had advanced at
the hearing. The trial court concluded that the registration and
notification provisions of Revised Subchapter H violated the
defendant's right to due process by impairing his right to
reputation through utilization of an irrebuttable presumption and
because the statutory system failed to provide requisite notice and
opportunity to be heard. The trial court further held Revised
Subchapter H violated the separation of powers doctrine because
it removed the trial court's ability to fashion an individualized
sentence. Finally, the trial court held that Revised Subchapter H
violated Alleyne/Apprendi by allowing for enhanced punishment
neither determined by the fact-finder nor premised upon proof
beyond a reasonable doubt. [Id. at ---, 232 A.3d at 574-75.]
Consequently, the trial court vacated the defendant's sentence to
the extent that it required compliance with Revised Subchapter
H's registration provisions. Id.
On appeal, our Supreme Court initially rejected the
Commonwealth's argument that the trial court lacked authority to
consider the constitutionality of Revised Subchapter H. [Id. at -
--, 232 A.3d at 584] (stating: “[A] viable challenge to legislative
findings and related policy determinations can be established by
demonstrating a consensus of scientific evidence where the
underlying legislative policy infringes constitutional rights. In such
cases, it is the responsibility of the court system to protect the
rights of the public”). Next, the Supreme Court acknowledged
that, based on the evidence the defendant had presented in
the trial court, he posed “colorable constitutional challenges” to
Revised Subchapter H's registration and notification provisions
based upon his asserted refutation of two critical legislative
determinations: (1) that all sex offenders pose a high risk of
recidivism; and (2) that the tier-based registration system of
Revised Subchapter H protects the public from the alleged danger
of recidivist sex offenses. Id.
Notwithstanding the defendant's proffered evidence,
however, the Court decided it was unable to conclude based upon
the record before it whether the defendant had sufficiently
undermined the validity of the legislative findings supporting
Revised Subchapter H's registration and notification provisions,
especially in light of the Commonwealth's contradictory scientific
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evidence produced on appeal. Noting that “it is not the role of an
appellate court to determine the validity of the referenced studies
based on mere citations rather than allowing the opportunity for
the truths to develop through a hearing on the merits of the
evidence,” the Court remanded to allow the parties to address
whether a consensus has developed to call into question the
relevant legislative policy decisions impacting sex offenders’
constitutional rights. [Id. at ---, 232 A.3d at 585.]
Further, in examining the trial court's analysis of the
irrebuttable presumption doctrine and the Mendoza-Martinez
factors, the Court emphasized that the trial court had relied
heavily upon its review of the defendant's proffered scientific
evidence. [Id. at ---, 232 A.3d at 587.] The Court reiterated that
although the defendant presented a colorable argument that the
General Assembly's factual presumptions have been undermined
by recent scientific studies, the Court was unable to affirm the
court's conclusions “because the evidence of record does not
demonstrate a consensus of scientific evidence...to find a
presumption not universally true..., nor the ‘clearest proof’
needed to overturn the General Assembly's statements that the
provisions are not punitive, which we have noted requires more
than merely showing disagreement among relevant authorities.”
[Id. at ---, 232 A.3d at 594.] Accordingly, the Court remanded
so the trial court could re-evaluate the defendant's proffered
evidence weighed against contrary evidence, if any exists. [Id.
at ---, 232 A.3d at 595.]
Commonwealth v. Manzano, --- A.3d ----, 895 MDA 2019, 901 MDA 2019,
2020 WL 4913292 at *10-13 (Pa.Super. Aug. 21, 2020) (emphasis in original).
Moreover, the Torsilieri Court specifically highlighted the following
principles:
[w]e emphasize that all cases are evaluated on the record created
in the individual case. Thus, a court need not ignore new scientific
evidence merely because a litigant in a prior case provided less
convincing evidence. Indeed, this Court will not turn a blind eye
to the development of scientific research, especially where such
evidence would demonstrate infringement of constitutional rights.
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Nevertheless, we also emphasize that it will be the rare
situation where a court would reevaluate a legislative policy
determination, which can only be justified in a case involving the
infringement of constitutional rights and a consensus of scientific
evidence undermining the legislative determination. We reiterate
that while courts are empowered to enforce constitutional rights,
they should remain mindful that “the wisdom of a public policy
is one for the legislature, and the General Assembly's
enactments are entitled to a strong presumption of
constitutionality rebuttable only by a demonstration that
they clearly, plainly, and palpably violate constitutional
requirements.” Shoul [v. Commonwealth, Dept. of
Transportation], [643 Pa. 302,] 173 A.3d [669,] 678 [(2017).]
Torsilieri, 232 A.3d at 595-96 (emphasis added).
In the instant case, Appellant raises similar arguments to those raised
in Torsilieri. However, unlike Torsilieri, Appellant failed to provide the trial
court with any scientific evidence or studies to refute the relevant legislative
finding that sexual offenders pose a high risk of committing additional sexual
offenses.
This Court has recently explained that a defendant’s failure to present
scientific evidence to support his claim that the underlying legislative policy in
Subchapter H infringes on his constitutional rights resulted in waiver as the
appellant “failed to satisfy his burden to prove that Revised Subchapter H
provisions applicable to him clearly, palpably, and plainly violate the
constitution.” Manzano, --- A.3d ----, 895 MDA 2019, 901 MDA 2019, at
*14-15.
While Appellant baldly asserts that scientific studies exist that support
his contention, there is no indication in the record created in this case to show
that Appellant attempted to produce evidence in support of a colorable
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argument that the General Assembly's factual presumptions have been
undermined by recent scientific studies. The trial court held a hearing on
Appellant’s post-sentence motion in which the parties presented oral
argument, but the transcript was not included in the certified record because
Appellant did not order this particular hearing to be transcribed.
As such, Appellant failed to provide any evidence in support of his
challenge to the relevant legislative finding in SORNA II. Consistent with our
decision in Manzano, we deem Appellant’s argument to be waived. It is well-
established that:
“The fundamental tool for appellate review is the official
record of the events that occurred in the trial
court.”Commonwealth v. Preston, 904 A.2d 1, 6 (Pa.Super.
2006) (en banc) (citation omitted). The certified record consists
of “original papers and exhibits filed in the lower court, paper
copies of legal papers filed with the prothonotary by means of
electronic filing, the transcript of proceedings, if any, and a
certified copy of the docket entries prepared by the clerk of the
lower court[.]” Pa.R.A.P. 1921. Items that are not part of the
certified record cannot be considered on appeal. See Preston,
904 A.2d at 6. In Pennsylvania, we place the responsibility of
ensuring that the record on appeal is complete “squarely upon the
appellant and not upon the appellate courts.” Id., at 7 (citing
Pa.R.A.P. 1931).
With regard to transcripts, our Rules of Appellate Procedure
require an appellant to order and pay for any transcript necessary
for resolution of the issues appellant raises on appeal. See
Pa.R.A.P. 1911(a). When an appellant fails to adhere to the
precepts of Rule 1911 and order all necessary transcripts, “any
claims that cannot be resolved in the absence of the necessary
transcripts … must be deemed waived for the purpose of appellate
review.” Preston, 904 A.2d at 7 (citation omitted).
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Interest of G.E.W., 233 A.3d 893, 899–900 (Pa.Super. 2020) (emphasis in
original). The record created in this case does not demonstrate that Appellant
presented a colorable claim that General Assembly's legislative findings have
been undermined by recent scientific studies. Thus, we conclude that
Appellant is not entitled to relief on this basis.
In addition, while Appellant asserts that the amendments made to
SORNA II are de minimis and its registration requirements remain punitive for
the reasons set forth in Muniz, Appellant makes no attempt to apply the
Mendoza-Martinez factors to properly analyze whether the challenged
portions of SORNA II constitute criminal punishment.
In similar circumstances, this Court has declined to assess the merits of
a constitutional challenge to SORNA’s registration requirements when the
appellant’s claim was not supported by meaningful analysis as to why the
statute should be deemed unconstitutional given the strong presumption of
constitutionality afforded to legislation. Cosby, 224 A.3d at 430-31 (finding
the appellant’s challenge to the constitutionality of his registration and
reporting requirements as an SVP under SORNA II to be not sufficiently
developed when the appellant cited, but did not adequately apply the
Mendoza-Martinez test to the applicable provisions of SORNA II). See also
Manzano, --- A.3d ----, 895 MDA 2019, 901 MDA 2019 (same).
As a result, we conclude that Appellant has failed to overcome his heavy
burden of persuasion to show that the challenged provisions of SORNA II
clearly, palpably, and plainly violate our federal and state constitutions.
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For the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judge Dubow joins the memorandum.
Judge Olson concurs in the result
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/2020
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