Com. v. Carr, S.

J-A02007-21

                               

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 SHAWN CARR                              :
                                         :
                   Appellant             :   No. 1684 WDA 2019

        Appeal from the Judgment of Sentence Entered July 23, 2019
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0011721-2018


BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.

OPINION BY BOWES, J.:                              FILED: AUGUST 30, 2021

     Shawn Carr appeals from his July 23, 2019 judgment of sentence of two

years of probation, which was imposed after he pleaded guilty to indecent

assault. After careful review, we vacate Appellant’s judgment of sentence and

remand with instructions.

     This appeal largely pertains to the special probation conditions imposed

upon Appellant, who was charged by criminal information with a number of

offenses in connection with a sexual assault he perpetrated against an adult

victim, Somalya Robinson, on July 14, 2018, in an apartment located near

downtown Pittsburgh, Pennsylvania. As it is relevant to our disposition, we

note that Appellant is deaf and communicates primarily through American Sign

Language (“ASL”) and interpreters. The victim is also deaf.

     On July 23, 2019, Appellant pled guilty to indecent assault in exchange

for the Commonwealth withdrawing the remaining charges. See N.T. Guilty
J-A02007-21



Plea & Sentencing, 7/23/19, at 5-17.             That same day, Appellant was

sentenced1 and ordered to comply with the following conditions:

       Contact:

       The offender is not to have contact with children under the age of
       18, beyond incidental business contact, unless approved by the
       probation/parole officer. The offender is not to loiter within 100
       feet of school yards, parks, playgrounds, arcades, or other places
       primarily used by children under the age of 18.

       The offender shall further not associate with children under the
       age of 18, except in the presence of a responsible adult who is
       aware of the nature of the offender’s current offense, criminal
       background[,] and who has been approved by the probation
       officer.

              ....

       Employment:

       The defendant shall not be employed in or participate in any
       volunteer activity that involves contact with children, except under
       circumstances approved in advance and in writing by the
       supervising probation/parole officer.

              ....

       Computer/Internet Access:

       The defendant shall not possess or use a computer with access to
       any “online computer service,” or any other electronic device that
       allows internet connections and/or access at any location
       (including employment) without the prior written approval of the
____________________________________________


1 At the same hearing, Appellant was sentenced in a separate criminal matter
at docket number CP-02-CR-0011720-2018 to an aggregate term of five to
ten years of imprisonment after a jury found him guilty of sexual assault.
Appellant’s sentence of probation in the instant case is not set to begin until
his incarceration at case number 11720-2018 has been served. See N.T.
Guilty Plea & Sentencing, 7/23/19, at 33.

                                           -2-
J-A02007-21


     probation/parole officer. This includes any internet services
     provided, bulletin board system or any other public or private
     computer network.

Charge Specific Special Conditions, 5/26/20, at 1-2.      Appellant was also

informed of his obligation to register as a sexual offender under Subchapter H

of the Pennsylvania Sentencing Code. See 42 Pa.C.S. §§ 9799.10-9799.42.

He was not adjudicated a sexually violent predator (“SVP”).

     During Appellant’s colloquy, he objected to the conditions of probation

restricting his contact with minors and curtailing his use of computers and

electronic devices with Internet capabilities.      See N.T. Guilty Plea &

Sentencing, 7/23/19, at 13-15. Specifically, Appellant asserted that there was

an insufficient nexus between these proscriptions and his crimes. He argued

further the technological probation restrictions would be too “onerous” due to

his reliance upon such technology to communicate effectively as a deaf

person. Id. at 15.

     At the conclusion of the hearing, the court sentenced Appellant to

comply with the above-quoted probation conditions. Id. at 33-34. The court

also spoke to the objections raised by Appellant:

     I think based on a totality of the circumstances evaluation, that
     all of the charge[-]specific conditions apply, with one caveat. I
     will note that it will be the duty of his [probation officer] to
     determine to what extent he may use the internet to communicate
     for bona fide employment, educational or treatment purposes.
     And I will note that on the form.




                                    -3-
J-A02007-21


Id.   On the order, the court noted that Appellant’s probation officer must

“tailor the Internet ban” to accommodate Appellant’s “hearing impairment.”

Charge Specific Special Conditions, 5/26/20, at 3.2

       On August 1, 2019, Appellant filed a timely post-sentence motion

challenging the above-quoted conditions.         Specifically, he asserted the

conditions were not sufficiently justified by the underlying circumstances of

the instant offense and his rehabilitative needs.      He also raised certain

constitutional arguments.3 On October 17, 2019, the court held a hearing on

Appellant’s post-sentence motion. Appellant relied upon Commonwealth v.

Houtz, 

 (Pa.Super 2009), wherein this Court concluded

that a probation condition providing that a defendant “not possess or have

access to a computer, or otherwise access the Internet,” was unreasonable

where there was “no nexus between the offense charged and access to a



____________________________________________


2  Although Appellant was sentenced on July 23, 2019, the text of the
probation conditions was not appended to the record in this case until the
parties filed a stipulation pursuant to Pa.R.A.P. 1926 on May 26, 2020.

3 With respect to the technology constraints imposed by the sentencing court,
Appellant argued that these terms violate the First and Fourteenth
Amendments to the U.S. Constitution pursuant to the U.S. Supreme Court’s
holding in Packingham v. North Carolina, ___ U.S. ___, 

 (2017) (holding that a statute categorically barring registered sex
offenders from accessing “commercial social networking sites” on the Internet
intruded upon “the legitimate exercise of First Amendment rights”). The
Commonwealth sought to distinguish Packingham by arguing it only
concerned “a general prohibition that applied to all sex offenders” regardless
of whether they were on probation. Id. at 14. Ultimately, the sentencing
court found that Packingham was “inapposite.” Id. at 18.

                                           -4-
J-A02007-21


computer” or the Internet. Thus, he asserted that his probation conditions

were unreasonable.

       The    sentencing     court,    however,   credited   the   Commonwealth’s

counterargument that Appellant’s misconduct had targeted deaf victims in the

past and concluded that he posed a potential danger to children, as well:

       [Appellant] is very aware that he, himself, has a vulnerability. He
       is challenged in his abilities to communicate. Being aware of all
       that limitation entails in his day-to-day life, he has nonetheless
       sought out victims who are similarly challenged in their ability to
       communicate in both of these cases. . . .[4] No one in society really
       is more vulnerable than a child.

       My concern in fashioning the sentence that I did was that having
       struck out now twice with victims who are challenged in the way
       that the two victims in these cases are challenged, he might move
       on to a different class of victim who is equally vulnerable.

N.T. Post-Sentence Hearing, 10/17/19, at 9-10.               Over objections from

Appellant’s counsel, the court also emphasized that Appellant’s presentence

report indicated that he had been charged with, but not yet convicted of,

possession and creation of child pornography in Virginia. Id. at 8-10. Thus,

it concluded that Appellant’s probation conditions concerning minors were “not

unreasonable” in view of the totality of the circumstances. Id. at 10.


____________________________________________


4  The sentencing court also oversaw Appellant’s jury trial in connection with
a sexual offense involving a separate deaf victim who was in her fifties at the
time of assault at docket number CP-02-CR-0011720-2018. Ultimately, a jury
convicted Appellant of statutory sexual assault in this separate matter prior to
Appellant’s guilty plea and sentencing in the above-captioned case. See N.T.
Hearing, 7/23/19, at 2. Appellant’s judgment of sentence was affirmed by
this Court in Commonwealth v. Carr, ___ A.3d ___, 

(Pa.Super. May 25, 2021) (non-precedential decision).

                                           -5-
J-A02007-21


      With respect to the technology restrictions, the sentencing court also

noted that it was “troubled by [Appellant’s evident] fixation with pornography”

and again referenced the outstanding Virginia charges:

      There is a pattern here of [Appellant] having this sort of unnatural
      interest in pornography coupled with, as I said before, these
      matters that he has outstanding in Fairfax County, Virginia.
      They’re troubling to the Court and I think that the imposition of
      this condition [struck] a balance between the protection of society
      and [Appellant’s] liberty interest.

      ....

      You know, [defense counsel,] if you or [the assistant district
      attorney] wants to go home and search the [I]nternet for adult
      porn, that is your business but you have not been convicted of
      sexually related crimes and [Appellant] has. . . . [I]t’s without
      question in my mind that the provision is appropriate[.]

Id. at 19.   The sentencing court then suggested that it might be open to

scaling back these restrictions if Appellant achieved a favorable outcome with

respect to the then-pending charges in Virginia:

      Now, keeping in mind, of course, I’m leaving the door open here.
      [Appellant] is going to Fairfax, Virginia, take care of his business
      in Virginia, and deal with those child porn cases and those
      computer-related child solicitation cases. Look, if he hits a home
      run and he’s found not guilty or those charges go away, I’m open
      to revisiting this issue and tailoring the ban on the [I]nternet
      usage more narrowly, I have an open mind in that regard, but I’m
      sure not going to do it now, not with those on the table. That
      would be reckless of me to do.

Id. at 20-21. Accordingly, the sentencing court denied Appellant’s motion.

      Appellant filed a timely notice of appeal to this Court. On November 21,

2019, the sentencing court ordered Appellant to filed a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) within twenty-

                                     -6-
J-A02007-21


one days. No extensions were requested or granted. On December 23, 2019,

Appellant filed an untimely concise statement through counsel. On March 19,

2020, the sentencing court forwarded a letter to this Court indicating that no

opinion would be filed pursuant to Rule 1925(a).

      Appellant has raised four issues in his brief to this Court:

      I. Where Appellant’s pled-to offense did not involve the Internet
      or a computer and he has a constitutional right to access the
      Internet, and the sentencing court imposed a condition of
      probation prohibiting Appellant from possessing any device with
      access to the Internet, did the sentencing court abuse its
      sentencing discretion and/or impose an illegal sentence?

      II. Where Appellant’s pled-to offense did not involve minors, and
      the sentencing court imposed a condition of probation prohibiting
      Appellant from having contact with minors, did the sentencing
      court abuse its sentencing discretion and/or impose an illegal
      sentence?

      III. Where the sentencing court imposed a condition of probation
      allowing unannounced, suspicion-less searches, did the
      sentencing court abuse its sentencing discretion and/or impose an
      illegal sentence?

      IV. Whether Appellant’s sentence is illegal because it requires him
      to register under Pennsylvania’s sexual offender Internet registry
      and it requires him to register under an unconstitutional
      registration scheme?

Appellant’s brief at 5 (cleaned up; issues reordered).

      Before engaging with the merits of these issues, we must address the

untimeliness of Appellant’s Rule 1925(b) concise statement. When Appellant

was directed and required to file it, he was represented by Steven Tehovnik,

Esquire, of the Public Defender’s Office of Allegheny County. “An attorney’s

failure to file and serve a timely [Rule] 1925(b) statement in a criminal case

                                      -7-
J-A02007-21


is a failure to perfect the appeal, it is presumptively prejudicial and clear

ineffectiveness.” Commonwealth v. Presley, 

 (Pa.Super.

2018). “Accordingly, in criminal cases, remand, not waiver, results from the

late filing of a statement, unless the trial court addressed the issues raised in

a late-filed statement. In those circumstances, no remand is necessary, and

this Court may address the merits of issues.”         Id.; see also Pa.R.A.P.

1925(c)(3). Ordinarily, we would remand this case to the sentencing court

for the preparation of a Rule 1925(a) opinion addressing the issues raised in

Appellant’s untimely concise statement.

      However, the original jurist presiding in this case is unavailable to author

a responsive opinion. Therefore, no purpose would be served by remanding

this matter as the record already establishes that the preparation of an

adequate Rule 1925(a) opinion is not possible.       See Letter, 3/19/20, at 1

(“Due to the Court’s unavailability and the unforeseeable nature of its

duration, . . . [t]he record shall be transmitted without an opinion as required

under [Rule] 1925(a) in order to avoid undue delay.”). Our case law provides

that where the original trial judge is “unavailable to provide a supplemental

opinion,” we are permitted to review both “legal issues” and “factual findings”

implicated by an appeal without the benefit of a Rule 1925(a) opinion. See,

e.g., Dolan v. Hurd Millwork Company, Inc., 

 (Pa.




                                      -8-
J-A02007-21


2018). Thus, we will address the issues raised in Appellant’s untimely filing.5

       Although set forth as a single issue, Appellant’s first claim consists of

two separate challenges to the probation condition restricting his use of

computers and the Internet and Internet-capable devices. Appellant’s initial

argument asserts that the condition is unreasonable due to the lack of a nexus

between it and Appellant’s crime and rehabilitative needs. See 

. His second argument raises constitutional claims grounded in the

First and Fourteenth Amendments to the United States Constitution.

       We will begin by reviewing Appellant’s reasonableness arguments,

which constitute a challenge to the discretionary aspects of his sentence.6 See

. Appellant is not entitled to review of this claim as of

right, but must invoke this Court’s jurisdiction by: (1) filing a timely notice of

appeal; (2) properly preserving the issue at sentencing or in a post-sentence



____________________________________________


5 Although Dolan v. Hurd Millwork Company, Inc., 

 (Pa.
2018) was a civil matter, we can discern no reason why its holding concerning
a generally-applicable Rule of Appellate Procedure should not apply with equal
force in the criminal context.

6  Appellant also asserts that this issue simultaneously implicates the legality
of his sentence. See Appellant’s brief at 31-32. However, Appellant merely
parrots the same argument that concerns the discretionary aspects of his
sentence. 

 To the extent that Appellant relies upon separate grounds for
relief with respect to this issue, we find any such argument waived for a lack
of adequate discussion. See Commonwealth v. Janda, 

(Pa.Super. 2011) (holding that appellant waived argument by citing “no law
or evidence of record in support of his arguments”) (citing Pa.R.A.P. 2119).

                                           -9-
J-A02007-21


motion; (3) including a concise statement in his brief pursuant to Pa.R.A.P.

2119(f); and (4) raising a “substantial question” that the sentence appealed

from is not appropriate under the Pennsylvania Sentencing Code.              See

Commonwealth v. Moury, 

 (Pa.Super. 2010).

      Appellant has satisfied all four prerequisites with respect to his first

claim. He has filed a timely appeal, properly preserved this issue in post-

sentence motion practice, and included a Rule 2119(f) statement in his brief

to this Court. Furthermore, a claim that a particular probation condition is not

reasonable due to the lack of a nexus between the restriction and the

rehabilitative needs of the defendant has previously been found to present a

substantial question in this context. See Commonwealth v. Starr, 

 (Pa.Super. 2020) (citing 

).             Thus, we will

address the merits of this part of Appellant’s first claim for relief.

      Appellant is challenging the reasonableness of the probation condition

restricting his use of computers on two closely interrelated grounds. First,

Appellant asserts that “this case is on all fours with Houtz” in that “[n]o nexus

was shown between [Appellant’s] offense, which did not involve any allegation

of use of a computer or the Internet in furtherance of the crime,” and the

special conditions imposed by the sentencing court. Appellant’s brief at 34,

38. Additionally, he argues the sentencing court assigned undue weight to

the charges against him in Virginia. Id. at 29-30, 36.




                                      - 10 -
J-A02007-21


      As a general matter, the sentencing court is charged to impose a

sentence that is “consistent” with “the protection of the public, the gravity of

the offense as it relates to the impact on the life of the victim and on the

community, and the rehabilitative needs of the defendant.”           42 Pa.C.S.

§ 9721(b). Our standard of review in this context is well-established:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant must establish, by reference to the record, that the
      sentencing court ignored or misapplied the law, exercised its
      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.

Commonwealth v. Shugars, 

 (Pa.Super. 2006). “The

rationale behind such broad discretion and the concomitantly deferential

standard of appellate review is that the sentencing court is in the best position

to determine the proper penalty for a particular offense based upon an

evaluation of the individual circumstances before it.”     Commonwealth v.

Walls, 

 (Pa. 2007). In conducting our review, this Court

must also “have regard” for: (1) the nature and circumstances of the offense

and the history and characteristics of the defendant; (2) the opportunity of

the sentencing court to observe the defendant, including any presentence

investigation; (3) the findings upon which the sentence was based; and (4)

the Pennsylvania Sentencing Guidelines. 42 Pa.C.S. § 9781(d)(1)-(4).

      With specific reference to probation conditions, the sentencing court is

required to impose “reasonable conditions” that “it deems necessary to ensure

                                     - 11 -
J-A02007-21


or assist the defendant in leading a law-abiding life.” 42 Pa.C.S. § 9754(c).

The scope and substance of probation conditions is governed by 42 Pa.C.S.

§ 9763(b), which provides a non-exhaustive list of potential conditions.

Pursuant to a catchall provision in this statute, the sentencing court is

generally empowered to impose probation conditions that require a defendant

“to do things” that are “reasonably related to rehabilitation.”    42 Pa.C.S.

§ 9763(b)(15). This Court has interpreted this statutory rubric as follows:

      A probation order is unique and individualized. It is constructed
      as an alternative to imprisonment and is designed to rehabilitate
      a criminal defendant while still preserve the rights of law-abiding
      citizens to be secure in their persons and property. When
      conditions are placed on probation orders they are formulated to
      insure or assist a defendant in leading a law-abiding life.
      Moreover, as long as conditions placed on probation are
      reasonable, it is within a trial court’s discretion to order them.

Commonwealth v. Hartman, 

 (Pa.Super. 2006) (internal

citations omitted). Thus, “[w]hile sentencing courts have discretion to impose

conditions of probation, such conditions must be reasonable and devised to

serve rehabilitative goals, such as recognition of wrongdoing, deterrence of

future criminal conduct, and encouragement of law-abiding conduct.”

Commonwealth v. Hall, 

 (Pa. 2013).

      Appellant’s arguments concerning Houtz comprise a large portion of his

claim for relief. In that case, Houtz pleaded guilty to corruption of a minor

and indecent assault in connection with her inappropriate sexual contact with

a fifteen-year-old child.   She was sentenced to a term of probation that

included “a condition that she not possess or have access to a computer, or

                                    - 12 -
J-A02007-21


otherwise access the Internet[.]” Id. at 540. Houtz challenged, inter alia,

the validity of this restriction on the grounds that it was not reasonably related

to her rehabilitation or the crimes she committed. Furthermore, she asserted

that the restrictions would curtail “her continued receipt of food stamps and

medical benefits for her family” by preventing her from complying with her

employment search requirements. Id. Finally, Houtz also claimed that the

restriction would inhibit her ability “to access online courses to facilitate her

ability to obtain a medical transcription certificate[.]” Id. at 541.

      The trial court in Houtz affirmed pursuant to 

(“[A] defendant who uses his computer and other Internet capable equipment

to access pornographic photographs of young girls [may] be prohibited from

using a computer or other Internet capable equipment while on probation.”).

On appeal, this Court concluded that the trial court had erred:

      We disagree with the trial court’s computer/Internet restriction as
      a condition of [Houtz’s] probation, especially where there is no
      nexus between the offense charged and access to a
      computer/Internet.

      The trial court’s reliance upon [Hartman] to buttress its
      prohibition of Appellant’s use of a computer/Internet misses the
      mark because Hartman’s crime involved having child pornography
      on the hard drive of his computer. Herein, there is no evidence
      that [Houtz’s] sexual offense involving a minor child was
      facilitated by or incorporated the use of a computer/Internet.

      . . . . [C]ontinued endorsement of such a restriction would [also]
      curtail Appellant’s efforts to make positive changes to improve her
      life and that of her children.

      Moreover, this Court’s attention to the punitive nature of the
      computer/Internet prohibition centers upon the absence of any

                                     - 13 -
J-A02007-21


       facts recited by the Commonwealth or the trial court which would
       allow this Court to conclude that such a restriction is reasonably
       related to Appellant’s rehabilitation. See 42 Pa.C.S. § 9754.
       Stated otherwise, there is no evidence that Appellant used the
       computer/Internet for sexually explicit material involving minors
       or that she used the computer/Internet as a source to establish
       and cultivate relationships.

       For all of the reasons set forth above, we hold that the trial court’s
       denial of Appellant’s petition to strike the condition of probation
       prohibiting her use of a computer and/or access the Internet is
       unreasonable and inappropriate.

.

       Appellant’s reliance upon Houtz is apposite. There is no evident nexus

between the crime to which Appellant pled guilty and the restrictions upon his

ability to use computers, smartphones, and the Internet.                  Furthermore,

Appellant    presented     unchallenged        testimony   that   these   technological

restrictions would severely restrict his ability to communicate effectively with

the speaking world.7        See N.T. Guilty Plea & Sentencing, 7/23/19, at 15

(“[U]sing a computer or cell phone to access that is very important to me.

Using a technology called the video phone, that’s how I make phone calls for


____________________________________________


7 In addition to the probation conditions, the sentencing court made a notation
directing Appellant’s probation officer to “tailor the Internet ban” to
accommodate Appellant’s “hearing impairment.” Charge Specific Special
Conditions, 5/26/20, at 3. Since this holding vacates the underlying probation
condition on separate grounds, we will not address the merits of this issue
further. However, we note that “the legislature has specifically empowered
the court, not the probation officers and not any individual probation officers,
to impose the terms of probation.” Commonwealth v. Vilsaint, 

 (Pa.Super. 2006). Thus, “a sentencing court may not delegate its
sentencing decision to any person or group.” Commonwealth v. Klein, 

 (Pa.Super. 2002).

                                          - 14 -
J-A02007-21


work or to let someone know of an emergency.”).                We have little trouble

extrapolating the ways in which such an indiscriminate ban could negatively

impact Appellant’s ability to better himself.

       However, there is one factual source of information concerning

Appellant’s alleged used of a computer in an illicit sexual fashion, namely, the

charges brought against him in Virginia that were pending at the time of

sentencing. “[A] court in imposing sentence may consider prior arrests . . .

as long as the court realizes that the defendant had not been convicted on

those prior charges.”        Commonwealth v. Thomas, 

(Pa.Super. 1984). Furthermore, “[t]he contents of a pre-sentence report may

include references to all arrests, what ever [sic] the disposition of the case.”

Commonwealth           v.   Allen,    

   (Pa.Super.   1985).

Nonetheless, the sentencing court may not assign “undue weight” to such

charges. See Commonwealth v. Craft, 

 (Pa.Super.

1982); Commonwealth v. Womack, 

, at *3 (Pa.Super.

Nov. 7, 2019).8 This Court has previously held that a sentencing court errs

when it treats a prior arrest as demonstrative of “criminal conduct” because it



____________________________________________


8  Commonwealth v. Womack, 

 (Pa.Super. Nov. 7, 2019)
is a non-precedential memorandum, but we may cite it for its persuasive
value. See Commonwealth v. Smith, 

, 17 n.6 (Pa.Super. 2020)
(“[N]on-precedential decisions of this Court filed after May 1, 2019, “may be
cited for their persuasive value.”) (citing Pa.R.A.P. 126(b)(1)(-(2)). Here, we
cite Womack for the limited proposition that our case law concerning undue
weight and pending charges is still controlled by the above-cited precedent.

                                          - 15 -
J-A02007-21


ignores the defendant’s entitlement to a “presumption of innocence” and

amounts to “basing a sentence not simply on evidence not before the court

but on no evidence at all.” Commonwealth v. Shoemaker, 

 (Pa.Super. 1973); see also 

 (“[T]he relevancy of

a prior conviction is far greater than that of a mere arrest since a defendant

could conceivably be exonerated thereafter.”).

      Instantly, the sentencing court’s heavy reliance upon the charges

pending against Appellant in Virginia transgressed these limits. As a threshold

matter, the court was permitted to consider this evidence and it accurately

noted Appellant’s still-presumed innocence. However, it is equally clear from

the certified transcripts that the sentencing court treated these unproven

charges against Appellant as proof positive of his criminal conduct. The court

repeatedly emphasized its “concern” with these charges and stated that it was

“troubled” by them. See N.T. Post-Sentence Motion, 12/17/19, at 3, 8-9, 19-

21. Throughout the hearing on Appellant’s post-sentence motions, the court’s

discussion assumed Appellant had already been adjudged guilty of some

sexual offense related to computers or the use of the Internet. 

 Indeed,

the court went so far as to suggest that it would be “reckless” to not impose

a technology proscription while these charges were “on the table.” Id. at 21.

And though it acknowledged the sheer possibility that Appellant might

eventually be exonerated; the court intimated that it would take a “home run”

for Appellant to prevail against such allegations.        Id.   Indeed, most


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J-A02007-21


troublingly, the sentencing court stated that these restrictions could be altered

only after Appellant had been acquitted of these Virginia charges. See N.T.

Post-Sentence Hearing, 10/17/19, at 20-21. In effect, the sentencing court

presumed Appellant to be guilty of these largely undescribed charges and

placed the onus upon him to establish his innocence.                See, e.g.,

Commonwealth v. Sheppard, 

 (Pa.Super. 1974) (“In

placing the burden upon the defendant to rebut a presumption of guilt, the

court committed an error of basic and fundamental dimensions . . . .”).

       In sum, the charges brought against Appellant in Virginia were not a

mere factor considered by the sentencing court but served as the lynchpin and

focus of its imposition of the restrictions upon Appellant’s use of computers

and the Internet.9 Thus, the sentencing court erred in attaching undue weight

to charges not yet prosecuted or proved. See 

.




____________________________________________


9  Both at sentencing and during the hearing on Appellant’s post-sentence
motion, the court expressed significant concern about Appellant’s apparent
fixation with pornography that dated back to 1998 and included instances
where he stole pornography from third parties. The trial court’s discussion
suggests that the technology restrictions are imperative to curb Appellant’s
access to such materials. However, we note that one of the unchallenged
probation conditions in this case prohibits him from possessing or using “any
pornographic, sexually oriented or sexually stimulating materials, including
visual, auditory, telephonic, or electronic media and computer programs or
services that are relevant to the offender’s deviant behavior pattern.” Charge
Specific Special Conditions, 5/26/20, at 2.

                                          - 17 -
J-A02007-21


       Even assuming, arguendo, that this error, alone, does not automatically

entitle Appellant to relief,10 it lends dispositive credence to Appellant’s

arguments under Houtz. Viewing the relevant evidence without distortion,

only a tenuous and speculative connection exists between the facts at the time

of sentencing and the probation conditions proscribing Appellant’s use of the

Internet and Internet-capable devices. As in Houtz, there is an insufficient

“nexus” between “the offense charged and access to a computer” or the

Internet. 

. Furthermore, this stringent restriction would

impede Appellant’s ability to communicate effectively given his hearing

impairment. 

. Although there is a possibility that Appellant may be

adjudged guilty of these allegations at some future date, at the time of

sentencing there was an “absence of any facts recited by the Commonwealth

or the trial court which would allow this Court to conclude that such a

restriction is reasonably related to Appellant’s rehabilitation.” 

.



____________________________________________


10  In Commonwealth v. Shoemaker, 

 (Pa.Super. 1973), this
Court ultimately declined to vacate Shoemaker’s sentence of incarceration
despite a trial court error in considering charges against the defendant that
had not yet resulted in convictions as demonstrative of “criminal conduct.”
Specifically, this Court concluded that Shoemaker had failed to demonstrate
that his sentence was also the product of “misinformation” or otherwise
“excessive.” 

. The instant case is readily distinguishable. Here,
Appellant’s entitlement to relief is predicated upon the result of the court
affording undue weight to the charges brought against him in Virginia. Unlike
in Shoemaker, this is not a mere procedural violation. Rather, the sentencing
court here afforded undue weight to pending criminal charges in order to
justify the imposition of unreasonable probation conditions.              See
Commonwealth v. Houtz, 

 (Pa.Super 2009).

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      The sentencing court erred and abused its discretion by imposing an

unreasonable and inappropriate probation condition restricting Appellant’s use

of various electronic devices and the Internet.     These conditions must be

vacated. Since we grant relief on separate grounds, we will not address the

merits of Appellant’s constitutional claims. See, e.g., In re Stevenson, 

 (Pa. 2010) (“[I]t is better to avoid constitutional questions if a

non-constitutional ground for decision is available.”).

      Turning to Appellant’s second issue challenging the probation conditions

restricting his contact with minors on identical grounds, we are constrained to

reach a similar conclusion.    The only relevant indicia that would create a

factual nexus between these restrictions and Appellant’s rehabilitative needs

are the same unproven charges from Virginia. See Appellant’s brief at 31

(“There is no evidence that [Appellant] committed any crime involving

minors.”). As above, the sentencing court’s discussion clearly evinces that it

treated Appellant as if he had already been found guilty of these charges. See

N.T. Post-Sentence Motion, 10/17/19, at 8-10. Accordingly, this evidence was

erroneously afforded undue weight. See 

. While

the sentencing court was motivated by a commendable desire to safeguard

children, we cannot endorse the imposition of these sweeping restrictions




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J-A02007-21


without a clearer factual connection to the instant case.11 See 

. In conformity with our earlier discussion, the sentencing court

erred and abused its discretion in imposing unreasonable conditions restricting

Appellant’s contact with minors. These conditions must also be vacated.

       Appellant’s third claim concerns an allegation that the probation

conditions imposed by the sentencing court would permit his probation officer

to conduct “suspicionless” searches of any electronic devices owned by

Appellant. See Appellant’s brief at 54-59. Appellant has advanced this claim

in response to a discussion that took place at the conclusion of the hearing on

Appellant’s post-sentence motion. See N.T. Post-Sentence Motion, 10/17/19,

at 21-26. During this exchange, the court sought clarification from the parties

regarding what types of oversight a probation officer might be permitted over

Appellant’s use of electronic devices.             Ultimately, the sentencing court

conceded that a probation officer would have to possess “some level of

suspicion” to conduct a search of such property. Id. at 23.




____________________________________________


11 The sentencing court sought to justify this probation condition by arguing
that Appellant has been convicted of crimes involving deaf victims in the past.
Thus, it asserted that he may begin targeting children. See N.T. Post-Sentence Motion, 10/17/19, at 7-10. These arguments also inappropriately
focused upon the pending charges against Appellant in Virginia. Id. The
imposition of probation conditions must not rely exclusively upon speculation
concerning the defendant’s guilt based upon facts not in evidence. See, e.g.,
Commonwealth v. Houtz, 

 (Pa.Super 2009);
Commonwealth v. Shoemaker, 

 (Pa.Super. 1973).

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J-A02007-21


       At the conclusion of the hearing, Appellant requested that the court

include a provision in the probation conditions explicitly requiring a probation

officer to possess “reasonable suspicion” before conducting such a search. Id.

at 26 (“[I]t appears that the condition of probation as it was imposed

regarding to the searches would allow random suspicionless searches.”). The

sentencing court declined to do so, stating: “I’m not going to paint probation

officers into a corner by imposing [a] particularized level of suspicion. I’m

just saying there has to be some level of suspicion and I’ll deal with it on a

case-by-case basis.” Id. at 27. The text of the conditions imposed contained

the following passage: “[Appellant] shall submit to the [probation officer]

conducting periodic unannounced examinations of the defendant’s computer

equipment[.]” Charge Specific Special Conditions, 5/26/20, at 2.

       The challenged passage quoted above appears in the portion of

Appellant’s probation conditions prohibiting him from using the Internet or

Internet-capable devices, which we declared unreasonable above based upon

separate grounds.       Thus, this claim is moot as we have already granted

Appellant the relief requested.12 Accordingly, we will not address it further.

____________________________________________


12 Although we express no opinion on the merits of Appellant’s claim, we note
that a probation officer is entitled to conduct a search of a probationer’s
property only “if there is a reasonable suspicion to believe that the real or
other property in the possession of or under the control of the offender
contains contraband or other evidence of violations of the conditions of
probation.” 42 Pa.C.S. § 9912(d)(2). See also Commonwealth v. Wilson,

 (Pa. 2013) (“[S]entencing courts are not empowered to
(Footnote Continued Next Page)


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J-A02007-21


       Appellant’s final set of claims challenge the validity of his obligation to

register as a sexual offender under Subchapter H of the Pennsylvania

Sentencing Code.13 See 42 Pa.C.S. §§ 9799.10-9799.42. He has raised these

issues for the first time in his reply brief and asserts that this statutory scheme

subjects him to an “irrebuttable presumption” of recidivism. See Appellant’s

reply brief at 14 (“Subchapter H presumes that [Appellant], like all registrants,

is dangerous and incapable of rehabilitation and provides no avenue to

challenge that presumption[.]”).          These allegations implicate his right to

reputation under Art. I, § 1 of the Pennsylvania Constitution, which was

discussed     in   this   context    by   the   Pennsylvania   Supreme   Court   in

Commonwealth v. Torsilieri, 

, 596 (Pa. 2020) (expressing no

opinion on the merits of a defendant’s arguments concerning a presumption

of recidivism under Subchapter H and remanding for further proceedings in

the trial court). Overall, Appellant’s discussion raises issues that uniformly

sound in due process. See Appellant’s reply brief at 14-36.



____________________________________________


direct that a probation officer may conduct warrantless, suspicionless searches
of a probationer as a condition of probation.”).

13 The relevant discussion in Appellant’s principal brief incorrectly presumes
that Appellant is subject to registration under Subchapter I of the
Pennsylvania Sentencing Code. See Appellant’s brief at 60-71. As Appellant
acknowledges in his reply brief, the July 14, 2018 date of his offense in the
above-captioned case subjects him to registration under Subchapter H. See
42 Pa.C.S. § 9799.11(c) (“This subchapter shall apply to individuals who
committed a sexually violent offense on or after December 20, 2012, for which
the individual was convicted.”).

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J-A02007-21


      Appellant asserts that “claims attacking [Subchapter H’s] registration

requirements implicate the legality of a sentence” and alleges that such claims

are non-waivable.    Id. at 13.   He is mistaken.    While these claims raise

concerns of constitutional dimension, our Supreme Court has previously

concluded that claims predicated upon the Pennsylvania Constitution’s “right

to reputation” may be waived for failure to raise them in the trial court. See

Commonwealth v. Muniz, 

, 1195 n.7 (Pa. 2017) (citing

Pa.R.A.P. 302(a)). Furthermore, this Court has generally rejected attempts

to style due process claims as implicating the legality of a defendant’s

sentence.   See Commonwealth v. Wallace, 

(Pa.Super. 1987) (collecting cases). Accordingly, these claims are waived.

      As detailed above, we have concluded that the sentencing court abused

its discretion in fashioning several unreasonable probation conditions. While

these unreasonable probation conditions must be vacated, “if our disposition

apparently alters the sentencing scheme of the trial court, we must vacate the

sentence and remand for resentencing.” Commonwealth v. Deshong, 

 (Pa.Super. 2004). We have concluded that the court below

attached inappropriate weight to out-of-state charges leveled against

Appellant in fashioning the entirety of his probationary sentence. This finding

has necessarily upended the sentencing scheme originally contemplated by

the court. Thus, we vacate Appellant’s sentence in toto and remand for further




                                    - 23 -
J-A02007-21


proceedings. On remand, the sentencing court shall resentence Appellant in

conformity with the principles discussed herein.

      Judgment of sentence vacated.          Case remanded with instructions.

Jurisdiction relinquished.

      Judge McLaughlin joins the opinion.

      Judge Nichols concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/30/2021




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