Com. v. Smith, J.

J-A26001-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES M. SMITH :
:
Appellant : No. 2456 EDA 2019
Appeal from the Judgment of Sentence Entered May 22, 2019
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0000030-2017
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED: DECEMBER 31, 2020
Appellant, James M. Smith, appeals from the May 22, 2019 judgment of
sentence of 60 to 180 months’ incarceration, followed by 36 months’
probation, imposed after a jury convicted him of three counts of unlawful
contact with a minor, criminal attempt to commit involuntary deviate sexual
intercourse, criminal attempt to commit aggravated indecent assault, criminal
attempt to commit statutory sexual assault, and criminal use of a
communication facility.1 On appeal, Appellant alleges that the court erred in
denying his request for a mistrial after the court improperly questioned him
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 6318(a)(1), 18 Pa.C.S. §§ 901(a)/3122(a)(7), 18 Pa.C.S. §§
901(a)/3125(a)(8), 18 Pa.C.S. §§ 901(a)/3122.1(b), and 18 Pa.C.S. § 7512,
respectively.
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during his direct-examination, and that his lifetime registration requirement
as a Tier III offender under Subchapter H of the Sexual Offender Registration
and Notification Act (“SORNA II”)2 is unconstitutional.3 After careful review,
we vacate the portion of Appellant’s judgment of sentence deeming him a Tier
III offender under SORNA II, and remand for further proceedings consistent
with this memorandum.
The trial court summarized the facts and procedural history of
Appellant’s case, as follows:
[A]ppellant was the subject of a child exploitation
investigation conducted by the Office of the Attorney General
[(OAG)]. The investigation ended when ... [A]ppellant arrived at
the Little Lehigh Parkway expecting to meet a thirteen[-]year[-
]old child, but instead, met undercover agents of the [OAG] who
arrested him. The arresting officers included the undercover
agent who had been communicating with ... [A]ppellant while
assuming the identity of a thirteen (13) year old named “Marisa.”
____________________________________________
2
42 Pa.C.S. §§ 9799.10-9799.42 and 42 Pa.C.S. §§ 9799.51-9799.75,
respectively.
3
Following Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), and
Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017) (“Butler I”), rev’d,
226 A.3d 972 (Pa. 2020) (“Butler II”), the Pennsylvania General Assembly
amended the prior version of SORNA (“SORNA I”) by enacting Act 10 on
February 21, 2018, and Act 29 on June 12, 2018, which are collectively known
as “SORNA II.” See Act of Feb. 21, 2018, P.L. 27, No. 10 (“Act 10”); Act of
June 12, 2018, P.L. 140, No. 29 (“Act 29”). SORNA II now divides sex
offenders into two subchapters: (1) Subchapter H, which applies to an
offender who committed a sexually violent offense on or after December 20,
2012 (the date SORNA I became effective); and (2) Subchapter I, which
applies to an individual who committed a sexually violent offense on or after
April 22, 1996, but before December 20, 2012, whose period of registration
has not expired, or whose registration requirements under a former sexual
offender registration law have not expired.
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A presentence report was ordered after the jury verdict, and
a sentencing hearing was held on May 22, 2019. Prior to
sentencing, [A]ppellant’s counsel filed “Defendant’s Motion to Bar
Application of SORNA….” The motion was denied after argument
at the time of sentencing.
… [A]ppellant was sentenced on the charge of [u]nlawful
[c]ontact [w]ith a [m]inor ([c]ount 1) to not less than sixty (60)
months nor more than one-hundred eighty (180) months in a
state correctional institution, to be followed by a consecutive
period of thirty-six (36) months[’] probation. The sentence
imposed for that charge was within the standard range of the
Sentencing Guidelines.
Due to [A]ppellant’s convictions for sexually violent
offenses, he was required to register as a Tier III offender for life.
He was not determined to be a sexually violent [predator].
On May 30, 2019, … [A]ppellant filed “Defendant’s Post-
Sentence Motions.” The next day, “Defendant’s Amended Post-
Sentence Motions” were filed. Objections to the requirements of
registration under … []SORNA[ II], as well as the sufficiency and
weight of the evidence assertions, were included in that motion.
… A hearing on that motion was held on July 29, 2019, and the
post-sentence and amended post-sentence motions were denied.
A [n]otice of [a]ppeal was filed on August 23, 2019. On
August 26, 2019, … [A]ppellant was directed to comply with
Pa.R.A.P. 1925(b) (hereinafter [Rule] 1925(b) Statement). An
“Application for Enlargement of Time…” to file his [Rule] 1925(b)
Statement was filed on August 27, 2019. The motion was
granted, and the timeframe for the filing of the [Rule] 1925(b)
Statement was extended until October 29, 2019. On October 28,
2019, counsel filed a “Concise Statement of Matters Complained
of on Appeal.” [The trial court filed its Rule 1925(a) opinion on
November 25, 2019.]
Background
On August 26, 2016, Special Agent Daniel Block, a member
of the Child Predator Section of the [OAG], came across an
advertisement on Craigslist which initiated this child exploitation
investigation. The advertisement was construed by Agent Block
as someone looking for a sexual encounter with a minor. Using
his undercover e-mail, he responded to the sexual overture, and
over the course of this investigation[,] assumed the cover-story
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of a thirteen (13) year old female named “Marisa Syr,” who had
recently moved from St. Louis, Missouri, to this area.
Throughout the chats that were exchanged, there was never
any doubt that a thirteen (13) year old was a participant. Agent
Block testified that “[o]n multiple occasions[,] I actually said my
age was 13.”
The initial conversations used the Craigslist exchange, but
then moved to Google Hangout, a chat platform. Appellant
identified his e-mail address as “cdjamieisafreak@gmail.com.” To
uncover the individual to whom he was communicating, Agent
Block secured Internet Protocol Numbers (IP address), and
through a variety of investigative steps learned that it came back
to the desk of … [A]ppellant at Talen Energy.
The sexual exchanges, some more explicit than others,
lasted from August 26, 2016, to October 19, 2016. Agent Block
explained that the person with whom he was communicating
wanted to meet “go for a walk, kiss, cuddle. He wanted the
purported child to wear a summer dress without underwear, and
then more cuddling and possibly sexual contact would happen
after that.” During their conversations, “Marisa” said that she was
a “virgin,” and the response was that he had a “vasectomy.” Their
conversations evolved into meeting for a sexual assignation on
October 19, 2016.
On October 19, 2016, at approximately 7:00 p.m., …
[A]ppellant and “Marisa” arranged to meet at Little Lehigh
Parkway. Agent Block arrived and observed … [A]ppellant’s
Toyota Corolla parked near the entrance to the park. Agent Block
and Special Agent Eric Barlow entered the park and headed toward
the anticipated meeting place. While doing so, they encountered
… [A]ppellant, whom they recognized as the target of their
investigation. … [A]ppellant was immediately taken into custody,
verbally advised of his Miranda[4] rights, and explained the
essence of the charges.
… [Appellant] was then transported to the OAG’s Bureau of
Narcotics Investigation (hereinafter BNI) Allentown office, placed
in a conference room, and again advised of his Miranda rights. …
____________________________________________
4
Miranda v. Arizona, 384 U.S. 436 (1966).
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[A]ppellant executed a written Miranda form while at the BNI
office.
… [Appellant] was then interviewed by the agents. His
background was explored, and more significantly, his contact with
“Marisa” and his appearance at Little Lehigh Parkway. It was
learned that … [A]ppellant, who was fifty-one (51) years old at
the time of the trial, was a nuclear engineer at Talen Energy. He
was initially reticent to discuss his sexual peccadillos, but
eventually did so: He explained that “he had been looking for men
and women on Craigslist for the last five years for sexual contact.
He also stated that he recalled [] a minor child responding to one
of his ads on Craigslist in August of 2016. He stated anyone who
gives me attention, I also give them attention.” A taped interview
was completed with … [A]ppellant, which confirmed the details of
the investigation. He admitted that his e-mail account was
“cdjamieisafreak@gmail.com,” and that he had posted an
advertisement in August 2016. He also acknowledged that a
person identifying herself as a thirteen (13) year old responded to
the advertisement, and they exchanged messages with a sexual
content. Finally, he admitted to arranging a meeting in the park
for sexual contact with a thirteen (13) year old, and showed up at
the park. He was, however, unsure if he would have gone through
with sexual acts with a thirteen (13) year old. He also confessed
to a sexual addiction, and did not discriminate about with whom
he partnered.
… [A]ppellant testified on his own behalf, and conceded that
he had posted the advertisement on Craigslist[,] which initiated
this investigation. Over a five[-]year period using Craigslist, he
had communicated with “in the order of 100 to 150” people, met
approximately twenty, and had sexual relations with “maybe a
dozen.”
He also agreed that he received the response from “Marisa”
on August 26, 2016. During their extensive communications,
“Marisa” identified herself as a thirteen (13) year old, but …
[A]ppellant claimed his reaction was “disbelief.” Even so, the
communications continued, and … [A]ppellant began what he
described as a “quest” to identify the other party to their chats.
Throughout the entire period of their communication, August 26,
2016, to October 16, 2016, … [A]ppellant denied that he believed
he was speaking with a thirteen (13) year old. He described the
graphic sexual content of his conversations as a “fantasy
conversation with an adult.” Nonetheless[,] he continued to do
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so, and agreed to meet the person whom he did not believe was
a thirteen (13) year old in a secluded spot in Little Lehigh Parkway.
He testified that his reason for doing so was to discover the
“identify of the person I have been talking with for two months.”
… [A]ppellant also created a “journal” (text messages to
himself) regarding his suspicions about “Marisa.” His purpose, so
he testified, was “to organize thoughts and keep a record of what
was going on, and [] try to get to the identity of the person.”
Regarding his statements, … [A]ppellant contended that
shortly after the interview commenced, Agent Block “badgered”
him and used vulgar language. He asked Agent Block to leave the
conference room, which he did. He maintained that he believed
his conversations were not with a child, and his statements were
the product of fear that the agents would descend upon his home
and his neighbors.
Various character witnesses were also presented by the
defense, including neighbors, fellow employees at Talen Energy,
and people he met through the Boy Scouts or their children’s
sports activities. However, some of those witnesses backtracked
on their character testimony upon learning that … [A]ppellant was
having graphic sexual conversations with someone posing as a
thirteen (13) year old.
Trial Court Opinion (TCO), 11/25/19, at 1-7 (footnotes omitted).
On appeal, Appellant states the following issues for our review:
A. Whether the … trial court should have granted [A]ppellant’s
request for a mistrial after the trial judge questioned the
[A]ppellant in an adversarial tone[,] which conveyed to the jury
the impression that the judge did not believe his testimony[,]
thereby undermining his credibility?
B. Whether SORNA [II] is unconstitutional on its face and as
applied to [A]ppeallant [sic], for the following reasons:
1. Whether SORNA [II] denies the [A]ppellant due process under
the Pennsylvania Constitution because it creates an irrebuttable
presumption that those convicted of enumerated offenses “pose a
high risk of committing additional sexual offenses[,]” depriving
those individuals of their fundamental right to reputation without
notice and an opportunity to be heard?
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2. Whether SORNA [II] denies … [A]ppellant procedural due
process under the fifth and fourteenth amendments to the United
States Constitution because it unlawfully restricts liberty and
privacy without notice and an opportunity to be heard?
3. Whether SORNA [II] violates substantive due process under the
state and federal constitutions, U.S. Const. Amend. XIV; Pa.
Const. Art I, §1, because SORNA [II] deprives individuals of
unalienable rights and fails to satisfy strict scrutiny?
4. Whether the recent amendment to SORNA [II] is in all material
respects identical to SORNA [I] and therefore a punitive law?
5. Does SORNA [II,] as a penal law, violate the separation of
powers doctrine because it usurps the exclusive judicial function
of imposing a sentence?
6. Whether SORNA [II] contravenes the 5th, 6th and 14th
amendments of the United States Constitution and the
corresponding protections of the Pennsylvania Constitution
because as a criminal punishment, SORNA [II] cannot be imposed
without due process, notice and opportunity to contest its
imposition, and ensuring that each fact necessary to support the
mandatory sentence and a sentence beyond the authorized
statutory maximum is submitted to a jury and proven beyond a
reasonable doubt pursuant to Apprendi v. New Jersey, 530 U.S.
466 (2000)[,] and Alleyne v. United States, 1570 U.S. 99
(2013)?
7. Whether the imposition of mandatory[,] lifetime sex offender
registration for all Tier III offenses under SORNA [II] is a cruel
and unusual punishment in violation of the eight[h] and fourteenth
amendments to the United States Constitution and Article I,
Section 13 of the Pennsylvania Constitution?
Appellant’s Brief at 4-6 (unnecessary capitalization omitted).5
____________________________________________
5
Appellant filed an initial brief on May 5, 2020. On May 14, 2020, he filed an
application to supplement his brief, which this Court granted by per curiam
order. Appellant filed a supplemental brief on June 18, 2020. Any citation to
Appellant’s brief in this decision refers to his supplemental brief.
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Appellant first challenges the trial court’s denial of his motion for a
mistrial, which he made in response to questions the court asked of him during
his direct examination. As our Supreme Court has explained:
It is well-settled that the review of a trial court’s denial of a motion
for a mistrial is limited to determining whether the trial court
abused its discretion. An abuse of discretion is not merely an error
of judgment, but if in reaching a conclusion the law is overridden
or misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will
... discretion is abused. A trial court may grant a mistrial only
where the incident upon which the motion is based is of such a
nature that its unavoidable effect is to deprive the defendant of a
fair trial by preventing the jury from weighing and rendering a
true verdict. A mistrial is not necessary where cautionary
instructions are adequate to overcome prejudice.
Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa. 2011) (internal
citations and quotation marks omitted).
Here, Appellant’s request for a mistrial was made after the following
portion of his direct-examination, during which Appellant testified about why
he continued communicating with an individual claiming to be a 13-year-old
girl:
[Appellant:] Again, [I] was just wanting to find out who the other
person was, wanting to continue on.
[Defense Counsel:] Why didn’t you just confront this person once
and for all?
[Appellant:] If you confronted the person, I mean, I saw
previously, you know, confront, you know, try to confront them,
it’s just an adverse reaction, … and I really wanted to continue the
conversation and find out who it was.
THE COURT: How were you going to discover that? Was the
person--
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[Appellant]: I’m sorry?
THE COURT: How were you going to discover that? You’re on --
we’re now in October. You have been on since August. How are
you going to discover who this person was if you haven’t
discovered it? What, did you think the person was going to
suddenly admit on here, I’m a particular person?
[Appellant]: Well, as --
THE COURT: I mean, I don’t quite understand your point as to
how you expected the person was going to be uncovered through
continuing this ruse, according to you, from August 26th to now
we’re at October 11th. I don’t get it.
[Appellant]: Well, um -- so --
THE COURT: How do you -- how do you expect that you were
going to discover who this person was?
[Defense Counsel]: Your Honor, may we approach for a moment?
THE COURT: No.
[Appellant]: Um, so I had obviously been continuing this
discussion for several months, and it was becoming clear that,
you’re right, there was -- they were never going to voluntarily give
up their identity. And at a certain point, my curiosity got -- drove
me to say, Okay, I’m going to try to see a different way to find
their identity.
THE COURT: Okay. Continue, [defense counsel].
N.T. Trial Volume II, 1/17/19-1/18/19, at 743-45.
A short time after this exchange, Appellant moved for a mistrial, arguing
that the court had “expressed speculation about [his] veracity in front of the
jury” by questioning him in the manner it did. Id. at 757. The court denied
the motion, reasoning that nothing in the way it had questioned Appellant
indicated to the jury that it was skeptical of Appellant’s veracity. Id. Instead,
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the court was simply attempting to clarify “how [Appellant] was going to
discover the identity of this person….” Id.
Now, on appeal, Appellant contends that the court’s ruling was an abuse
of discretion.6 He insists that “[t]he [c]ourt acted in the manner of a
prosecuting attorney rather than an impartial arbiter in the presence of the
fact-finder.” Appellant’s Brief at 16. Appellant further argues that, “[b]y
questioning … Appellant in such a skeptical manner, the trial court had
questioned Appellant’s credibility and the key to his defense.” Id. “Since
Appellant’s state of mind was crucial to his defense,” Appellant concludes that
“the trial court’s obvious disbelief of Appellant seriously prejudiced him.” Id.
at 19-20.
In rejecting this claim, the trial court explained:
During the trial, [A]ppellant testified that his conversations
with “Marisa,” which spanned approximately fifty-four (54) days,
were designed to uncover the identity of the person with whom
he was communicating. This [c]ourt then asked … [A]ppellant
how he intended to do so when, from August to October, he had
been unsuccessful. … [A]ppellant, in response, agreed that the
other person was “never going to voluntarily give up their
identity,” and he would try a "different way to find their identity.”
____________________________________________
6
We reject the Commonwealth’s cursory assertion that Appellant has waived
this issue by not immediately moving for a mistrial after the court’s
questioning. See Commonwealth’s Brief at 10. The Commonwealth provides
no argument in support of this claim, and cites only Pa.R.A.P. 302(a) (“Issues
not raised in the lower court are waived and cannot be raised for the first time
on appeal.”). However, Appellant did raise this claim before the trial court,
and requested a mistrial, as discussed supra. While Appellant’s motion for a
mistrial was not instantaneous, it was made a short time after the court’s at-
issue questioning. Thus, we conclude that Appellant has preserved this issue
for our review.
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A few questions on that issue was the extent of the trial court’s
inquiry.
Pennsylvania Rule of Evidence (hereinafter Pa.R.E.) 614
codifies the common law rule and permits the trial court to
“examine a witness regardless of who calls the witness” in the
interests of justice. See Pa.R.E. 614(b). In that regard, the trial
judge has the right, and, at times, the duty to “ask questions when
absurd, ambiguous, or frivolous testimony is given or testimony
is in need of further elucidation.” Commonwealth v. Carson,
913 A.2d 220, 249 (Pa. 2006); see also Commonwealth v.
Lanza, 323 A.2d 178, 179 (Pa. Super. 1974) (“A trial judge has
an inherent right, and, at times, the duty to question witnesses to
clarify existing facts and to elicit new information.”).
The testimony of … [A]ppellant needed “elucidation”
regarding how he intended to discover the identity of “Marisa,”
when he had been unsuccessful from August to October. The
questions were brief and limited to that issue. Nothing could be
further from the truth than [A]ppellant’s claim that the questions
were “blatantly adversarial.” A mistrial was denied, and a new
trial is not warranted because the questioning of … [A]ppellant
was not prejudicial. It was not of “such nature or substance or
delivered in such a manner that it may reasonably be said to have
deprived the [Appellant] of a fair and impartial trial.”
Commonwealth v. Manuel, 844 A.2d 1, 9 (Pa. Super. 2004)
[(]quoting Commonwealth v. Purcell, 589 A.2d 217, 223-24
(Pa. Super. 1991)[)].
In Commonwealth v. King, 549 A.2d 195 (Pa. Super.
1988) (collecting cases), the role of the trial judge was explained
this way:
A courtroom is a court of justice and not just a battleground
for the tilting of attorneys or a testing of their wits and
oratory[;] … to so limit it would often jeopardize or defeat
justice. It is the purpose of a criminal trial to ascertain the
truth, and it is the business of the trial judge to see that the
end is obtained. Thus, it is proper for the trial court to ask
questions about facts which did not appear from either
counsel’s examination of the witness.
Id. at 197 [(internal citations omitted)].
Finally, the jury was instructed that “if [the court] ask[ed]
any questions of a witness, [the jury] should not interpret those
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questions as favoring one side or the other. Remember, [the jury]
decide[s] the facts and questions that [the court] might ask are
designed to clarify issues or questions that you might have about
the facts or circumstances.” The inquiry by this [c]ourt was not
error.
TCO at 23-25 (footnotes omitted).
Based on the court’s discussion, the record, and pertinent case law, we
discern no abuse of discretion in the court’s decision to deny Appellant’s
request for a mistrial. First, as the Commonwealth points out, the trial court
asked questions of other witnesses who testified prior to Appellant. See
Commonwealth’s Brief at 15 (“[T]here were many other occasions during trial
when the trial court asked questions of witnesses for the purpose of clarifying
their testimony.”) (citing N.T. Trial Volume I, 1/15/19-1/16/19, at 282-83,
290; N.T. Trial, 1/17/19, at 563 , 579, 619, 628-32, 638, 639). Second, when
the court questioned Appellant, it asked only a few questions, which were
framed to clarify Appellant’s testimony about how he planned to discover the
identity of the person to whom he was speaking. Third, the questions asked
by the court did not, in and of themselves, suggest that the court disbelieved
Appellant’s testimony. To the extent Appellant claims that the court spoke
with an incredulous tone, we must accept the court’s indication that it did not,
as the cold record does not demonstrate otherwise. See N.T. Trial Volume II
at 757.
As a whole, the facts of this case make it distinguishable from the
decision relied upon by Appellant, Commonwealth v. Williams, 364 A.2d
281 (Pa. 1976). There, the trial court questioned Williams about why he did
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not ask for a lawyer during his interview with police, even when the officers
had allowed Williams to call his sister. Id. at 285. Notably, when Williams
explained that he had not told his sister to get him a lawyer because the
officers were standing right there listening, the court quipped, “did they have
a gun against your back?” Id. In concluding that Williams deserved a new
trial, our Supreme Court reasoned that “[t]he judge’s reference to a gun at
[Williams’] back indicated quite clearly to the jury the judge’s own disbelief of
[Williams’] allegations that he had not been advised of his constitutional rights
and that he had been denied his right to speak with a lawyer.” Id. at 285-86.
Unlike in Williams, the questions posed to Appellant by the trial court
were not “so partisan in nature” as to have caused prejudice to Appellant. Id.
Indeed, we agree with the Commonwealth that,
the trial court’s brief questions to [Appellant] seeking clarification
were to his advantage. The trial [court] prompted [Appellant] to
resolve, in his favor, an apparent inconsistency in his exculpatory
story. The jury could have equally construed this as acceptance,
rather than skepticism, on the part of the trial [court].
Commonwealth’s Brief at 15. We also conclude, as did the trial court, that
any minimal prejudice resulting from the court’s questions was cured by the
court’s instruction that its questioning of witnesses should not be interpreted
as favoring one side or another. Accordingly, Appellant is not entitled to a
new trial.
Appellant’s next issue challenges the constitutionality of SORNA II. He
contends, inter alia, that SORNA II automatically applies a false, irrebuttable
presumption that sex offenders pose a high risk of reoffending, which deprives
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registrants of their right to reputation without notice and an opportunity to be
heard. He also claims that SORNA II is still punitive and contrary to the rules
set forth in Apprendi/Alleyne, despite the amendments made to SORNA I.
Appellant also avers that SORNA II constitutes cruel and unusual punishment.
Appellant’s arguments are identical to those recently addressed by our
Supreme Court in Commonwealth v. Torsilieri, 232 A.3d 567 (Pa. 2020),
and this Court in Commonwealth v. Mickley, --- A.3d ----, 1258 EDA 2019,
*2 (Pa. Super. filed Sept. 24, 2020). In Mickley, we explained:
The Torsilieri Court did not reach the merits of any of the
constitutional claims at issue, determining instead that the factual
record was not sufficiently developed in the trial court. The Court
concluded a remand was appropriate “to allow the parties to
address whether a consensus has developed to call into question
the relevant legislative policy decisions impacting offenders’
constitutional rights.” Id. at 587. The Court stated:
We recognize that the Commonwealth parties relied upon
our recent statement in Muniz, rejecting [ ] expert evidence
calling into question the legislature’s assessment of sexual
offender recidivism risks and the effectiveness of tier-based
registration systems. In light of this reliance, we 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.
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
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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.”
***
Accordingly, we conclude that the proper remedy is to
remand to the trial court to provide both parties an
opportunity to develop arguments and present additional
evidence and to allow the trial court to weigh that evidence
in determining whether [the Commonwealth] has refuted
the relevant legislative findings supporting the challenged
registration and notification provisions of Revised
Subchapter H.
Id. at 596 (emphasis added) (citations omitted).
Here, despite defense counsel’s attempt, no evidence was
presented at the hearing on Mickley’s post-sentence motion.
Thus, in accordance with Torsilieri, we vacate the order denying
Mickley’s post-sentence motion and remand for a hearing at which
the parties can present evidence for and against the relevant
legislation determinations discussed above.
Mickley, 1258 EDA 2019, at *4-5.
Here, as in Mickley, Appellant proffered no evidence to support his
challenges to SORNA II. Therefore, we vacate the order denying Appellant’s
post-sentence motion and remand for a hearing consistent with Torsilieri and
Mickley. We affirm Appellant’s judgment of sentence in all other respects.
Judgment of vacated in part, affirmed in part. Case remanded for
further proceedings. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/20
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