J-A15030-24
2024 PA Super 250
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANGEL MIGUEL MUNOZ-RODRIGUEZ :
:
Appellant : No. 1535 MDA 2023
Appeal from the PCRA Order Entered October 20, 2023
In the Court of Common Pleas of Adams County Criminal Division at
No(s): CP-01-CR-0000334-2020
BEFORE: DUBOW, J., BECK, J., and STEVENS, P.J.E.*
OPINION BY BECK, J.: FILED: OCTOBER 30, 2024
Angel Miguel Munoz-Rodriguez (“Munoz-Rodriguez”) appeals pro se
from the order entered October 20, 2023, by the Adams County Court of
Common Pleas (“PCRA court”) dismissing his first timely petition filed pursuant
to the Post Conviction Relief Act (“PCRA”).1 In this appeal, we review whether
Munoz-Rodriguez’s conviction in Maryland of a sexual offense of the third
degree obligates him to lifetime registration requirements under Subchapter I
of Pennsylvania’s Sexual Offender Registration and Notification Act
(“SORNA”),2 and consequently, whether his conviction of failure to comply
with the registration requirements of Subchapter I is sound. Upon review, we
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
2 42 Pa.C.S. §§ 9799.51-9799.75.
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are constrained to conclude that Munoz-Rodriguez does not have a duty to
register in Pennsylvania. We therefore reverse the order of the PCRA court,
vacate his judgment of sentence, reverse his conviction, and order him
discharged from custody.
We glean the following from the certified record. On or about August
27, 2003, Munoz-Rodriguez entered a negotiated guilty plea to a sexual
offense of the third degree in Maryland.3 The Maryland court sentenced him
to 3 years of confinement, with said period suspended except for time served
of 159 days, followed by 2 years of probation. Munoz-Rodriguez is subject to
lifetime registration requirements in Maryland.4
____________________________________________
3 See Md. Code Ann., Crim. Law § 3-307(a)(3). The certified record does not
contain certified documents relating to Munoz-Rodriguez’s conviction in
Maryland, including his charging document. His immediate-past PCRA
counsel, Attorney Brandy Hoke, attached to her petition to withdraw as
counsel the notes of testimony from Munoz-Rodriguez’s guilty plea and
sentencing hearing in Maryland on August 27, 2003, and his Maryland Sex
Offender Registration. See Petition to Withdraw as Counsel, 9/7/2023, Exs.
A-B. While those exhibits do not reference the statutory subsection to which
Munoz-Rodriguez pled guilty in Maryland, the parties agree that it was
subsection (a)(3). See Munoz-Rodriguez’s Brief at 8, 30; Commonwealth’s
Brief at i, 9, 11-12; see also PCRA Court Opinion, 10/20/2023, at 1-2, 11-
12.
4 See
Md. Code Ann., Crim. Proc. §§ 11-701(q)(2) (defining a tier III sex
offender to include a person who has been convicted of a violation of § 3-
307(a)(3) if the victim is under the age of 14 years), 11-707(a)(4)(iii) (stating
tier III sex offenders are required to register for life); see also Petition to
Withdraw as Counsel, 9/7/2023, Ex. B (Munoz-Rodriguez’s Sex Offender
Registration in Maryland designating his offense category as tier III and
registration term as lifetime).
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Munoz-Rodriguez relocated to Pennsylvania in or around 2004. On April
20, 2020, the Commonwealth filed an information charging Munoz-Rodriguez
with one count of failure to register with the Pennsylvania State Police (“PSP”),
subject to a grading enhancement to a first-degree felony based on a previous
failure to register conviction.5 On November 10, 2020, Munoz-Rodriguez
entered a negotiated guilty plea to one count of failure to verify address/be
photographed, graded as a second-degree felony.6 The trial court sentenced
Munoz-Rodriguez to a negotiated sentence of twenty-seven to sixty months
in prison. The trial court denied post-sentence motions and Munoz-Rodriguez
did not file a direct appeal.
On August 9, 2021, Munoz-Rodriguez filed a timely pro se PCRA petition,
his first. Of relevance to our review of this matter, Munoz-Rodriguez
challenged the legality of his sentence for failure to register under Subchapter
I of SORNA based on his contention that he had no duty to register. See PCRA
Petition, 8/9/2021, at 5, ¶¶ 13-42. Specifically, Munoz-Rodriguez claimed
that the PSP erroneously determined that he is subject to a lifetime
registration requirement under SORNA based on its conclusion that his 2003
____________________________________________
5 See 18 Pa.C.S. §§ 4915.2(a)(1), 4915.2(c)(3). It appears from the record
that in 2016, Munoz-Rodriguez pled guilty to failure to register at Franklin
County Court of Common Pleas Docket No. CP-28-CR-0002264-2014. See
Criminal Complaint, 2/20/2022, at 2; Petition to Withdraw as Counsel,
9/7/2023, at 13 (unpaginated).
6 See 18 Pa.C.S. § 4915.2(a)(2); see also Sentencing Order, 11/10/2020;
Amended Information, 11/10/2020.
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conviction in Maryland was similar to Pennsylvania’s offense of aggravated
indecent assault. See id. Rather, Munoz-Rodriguez contended, his Maryland
conviction was equivalent to the Pennsylvania offense of indecent assault,7
which he alleged required him to register for ten years (and not life) under
SORNA. Id., ¶¶ 25, 28-29. Munoz-Rodriguez thus claimed that any ten-year
period of registration had expired at the time the Commonwealth charged him
with failure to register in February 2020, more than sixteen years after his
Maryland conviction. Id., at 5, ¶¶ 33-34. Consequently, Munoz-Rodriguez
asserted that he was unlawfully induced to plead guilty to the crime of failing
to register, “a crime that was impossible to commit, and that he is actually
innocent thereof” based upon the PSP’s “erroneous assessment” and the
ineffective assistance of plea counsel. Id., ¶¶ 36, 40.
The PCRA court appointed Munoz-Rodriguez counsel, Attorney Thomas
Nell. Following a prehearing conference, the PCRA court ordered the parties
to file memoranda of law addressing whether, pursuant to SORNA, Munoz-
Rodriguez had to register for life in Pennsylvania based on his Maryland
____________________________________________
7 18 Pa.C.S. § 3126.
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conviction.8 On January 19, 2022, the PCRA court denied the PCRA petition9
and thereafter granted Attorney Nell’s petition to withdraw. Munoz-Rodriguez
timely appealed pro se, asserting, inter alia, ineffective assistance of counsel
by Attorney Nell. On March 25, 2022, this Court entered an order directing
the PCRA court to determine Munoz-Rodriguez’s eligibility for court-appointed
counsel for his claims of ineffective assistance of initial PCRA counsel, Attorney
Nell. The PCRA court appointed Attorney Jamison Entwistle, who filed in this
Court a motion to withdraw and no-merit letter pursuant to Commonwealth
v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley,
550
A.2d 213 (Pa. Super. 1988) (en banc). This Court found Attorney Entwistle
complied with the mandates of Turner/Finley and granted his motion to
withdraw. However, because Attorney Nell had neither represented Munoz-
Rodriduez on the merits of his PCRA petition nor filed a sufficient
____________________________________________
8 Attorney Nell filed a document titled “Memorandum of Law” in which he found
Munoz-Rodriguez’s claims lacked merit; referenced Munoz-Rodriguez’s
arguments that were set forth in a pro se memorandum of law, which Attorney
Nell attached to his filing; explained why he disagreed with Munoz-Rodriguez;
stated he sent Munoz-Rodriguez a “no-merit” letter and intended to file a
motion to withdraw; and assured Munoz-Rodriguez that the PCRA court would
address his pro se memorandum. Memorandum of Law, 12/10/2021. The
Commonwealth did not file a memorandum, presumably because of the nature
of Attorney Nell’s filing.
9 It does not appear from the certified record that the PCRA court issued notice
of its intent to dismiss the petition without a hearing pursuant to
Pa.R.Crim.P. 907(1). “A PCRA court’s compliance with Rule 907 is
mandatory,” but Munoz-Rodriguez failed to challenge its absence, resulting in
waiver of the claim. Commonwealth v. Wooden,
215 A.3d 997, 1001 (Pa.
Super. 2019) (citation omitted).
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Turner/Finley no-merit letter that addressed all his claims in the court below,
we vacated the PCRA order denying the petition and remanded with
instructions for the PCRA court to appoint new PCRA counsel.
Commonwealth v. Munoz-Rodriguez, 285 MDA 2022, 2023 WL 2581851
(Pa. Super. filed Mar. 21, 2023) (non-precedential decision).
Upon remand, the PCRA court appointed Attorney Hoke as new PCRA
counsel.10 On September 7, 2023, Attorney Hoke filed a petition to withdraw
and Turner/Finley no-merit letter, to which Munoz-Rodriguez filed a pro se
response. On October 20, 2023, the PCRA court granted Attorney Hoke’s
petition to withdraw and denied Munoz-Rodriguez’s PCRA petition.11 Munoz-
Rodriguez filed a pro se motion for reconsideration, which the PCRA court
denied. This appeal followed.
On appeal, Munoz-Rodriguez raises the following issues for our review.
1. Whether the PCRA court erred and abused its discretion by
again failing to conduct the appropriate out-of-state
similarity determination, for sexual offender registration
purposes, when it did not consider all the elements of the
aggravated indecent assault crime of violence (18 Pa.C.S.[]
§ 3125), vis-a-vis the indecent contact admitted to in
Maryland, such as:
(A) The required culpability of recklessness/malice; and
____________________________________________
10The PCRA court initially appointed different PCRA counsel, but the court
permitted that attorney to withdraw because of a conflict of interest.
11 Once again, it does not appear from the certified record that the PCRA court
issued notice of its intent to dismiss the petition without a hearing pursuant
to Pa.R.Crim.P. 907(1), the absence of which Munoz-Rodriguez again fails to
challenge. See supra, note 9.
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(B) The gravity of the offense from a sentencing
perspective; and
(C) The general assembly’s specific designation of 18
[Pa.C.S.] § 3125 constituting a “crime of violence;”
and
(D) The distinguishing factors of “forbidden conduct” and
“culpability.”
2. Whether the PCRA court erred and abused its discretion
when it granted appointed PCRA counsel’s Turner/Finley
motion to withdraw when PCRA counsel failed to guide the
court as to the proper resolution of the matters at law;
thereby, depriving [Munoz-Rodriguez] of the right to
competent advocacy.
Munoz-Rodriguez’s Brief at 4 (suggested answers omitted).
Our review of a PCRA court’s decision is limited to examining
whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error. We view the findings of the PCRA court and the evidence
of record in a light most favorable to the prevailing party. With
respect to the PCRA court’s decision to deny a request for an
evidentiary hearing, or to hold a limited evidentiary hearing, such
a decision is within the discretion of the PCRA court and will not
be overturned absent an abuse of discretion.
Commonwealth v. Wilson, 273 A.3d 13, 18 (Pa. Super. 2022) (citations
omitted).
Munoz-Rodriguez first argues that the PCRA court failed to properly
apply the “equivalency evaluation” set forth in Commonwealth v. Northrip,
985 A.2d 734 (Pa. 2009), when it determined that Munoz-Rodriguez’s 2003
conviction in Maryland was similar to our aggravated indecent assault offense.
Munoz-Rodriguez’s Brief at 8. He argues that the PCRA court ignored in its
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analysis the elements of culpability, gravity of the offense, and our General
Assembly’s designation of aggravated indecent assault as a “crime of
violence.” Id. at 9, 13-14 (citing 18 Pa.C.S. §§ 103 (definition of “element of
an offense”), 302 (general requirements of culpability)). Munoz-Rodriguez
contends that because all appointed counsel failed to direct the court below to
the proper equivalency determination test, their conduct “abrogated [his]
right to counsel.” Id. He points to this Court’s footnote in his prior appeal,
which noted that his counsel had erroneously limited their equivalency
analysis to “facts” and not “comparative elements” of the criminal statutes at
issue. Id. at 9-12 (citing Munoz-Rodriguez, 285 MDA 2022, 2023 WL
2581851, at *4 n.4).
Relevant to our disposition of this matter, Munoz-Rodriguez argues that
the culpability element of the Maryland offense and aggravated indecent
assault offense are dissimilar, contending that the Maryland statute is broader
than our aggravated indecent assault statute. Id. at 29-30. He argues that
the Maryland statute “proscribes identical conduct” to, and its “‘purpose’ is
aligned” with, Pennsylvania’s definition of “indecent contact.” Id. at 31.12
____________________________________________
12 Munoz-Rodriguez further contends that reading 18 Pa.C.S. § 3125 and 42
Pa.C.S. § 9714(g) together, “[u]nless the conduct of masturbating a vagina
was done in a violent manner, resulting in serious bodily injury,” it cannot
meet the definition of aggravated indecent assault, and that his act of digital
penetration of a vagina, without serious bodily injury, only constitutes
indecent assault. Munoz-Rodriguez’s Brief at 18, 23. Not only does the plain
language of the aggravated indecent assault statute belie Munoz-Rodriguez’s
(Footnote Continued Next Page)
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The issue here involves a question of statutory interpretation that
implicates the legality of the sentence imposed, for which our standard of
review is de novo and our scope of review is plenary. Northrip, 985 A.2d at
736 (citations omitted); see also Commonwealth v. Crenshaw,
306 A.3d
383, 387 (Pa. Super. 2023) (stating that whether an out-of-state conviction
is similar under Subchapter I of SORNA to Pennsylvania’s indecent assault
statute is a question of statutory interpretation for which our standard of
review is de novo and our scope of review is plenary). A challenge to the
legality of an appellant’s sentence raised in a timely PCRA petition “is always
subject to review.” Commonwealth v. Fahy,
737 A.2d 214, 223 (Pa. 1999);
see also Commonwealth v. Krout, 1574 MDA 2021,
2022 WL 4100974, at
*2 (Pa. Super. filed Sept. 8, 2022) (non-precedential) (addressing a claim
interpreted as a challenge to the legality of sentence where the appellant
alleged in a timely-filed PCRA petition the ineffectiveness of plea counsel for
allowing him to plead guilty to failure to register under Subchapter I of SORNA
because he had no duty to register, and addressing the merits of the claim
____________________________________________
claim, but, as he recognizes, this Court has routinely held that digital
penetration of a victim constitutes aggravated indecent assault. See id. at
21; 18 Pa.C.S. § 3125; see, e.g., Commonwealth v. Gonzalez,
109 A.3d
711, 723 (Pa. Super. 2015) (“Digital penetration is sufficient to support a
conviction for aggravated indecent assault[.]”) (citation omitted).
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even though appellant had pled guilty and failed to move to withdraw his guilty
plea or file a direct appeal).13
“The object of all interpretation and construction of statutes
is to ascertain and effectuate the intention of the General
Assembly.” 1 Pa.C.S. § 1921(a). “The plain language of the
statute is the best indicator of the legislature’s intent. To ascertain
the plain meaning, we consider the operative statutory language
in context and give words and phrases their common and
approved usage.” Commonwealth v. Chesapeake Energy
Corp., 665 Pa. 2,
247 A.3d 934, 942 (2021).
Further, we must give effect and ascribe meaning to each
word and provision chosen by our legislature, assuming none is
mere surplusage. See, e.g., Commonwealth v. McClelland,
660 Pa. 81,
233 A.3d 717, 734 (2020) (“Some meaning must be
ascribed to every word in a statute ... and there is a presumption
that disfavors interpreting language as mere surplusage.”);
1 Pa.C.S. § 1921(a) (“Every statute shall be construed, if possible,
to give effect to all its provisions.”).
Crenshaw, 306 A.3d 383, 387-88.
The criminal offense to which Munoz-Rodriguez pled guilty in this case
provides, in pertinent part:
(a) Offense defined.--An individual who is subject to
registration under 42 Pa.C.S. § 9799.55(a), (a.1) or (b) (relating
to registration) or who was subject to registration under former
42 Pa.C.S. § 9793 (relating to registration of certain offenders for
ten years) commits an offense if the individual knowingly fails to:
…
(2) verify the individual’s residence or be photographed as
required under 42 Pa.C.S. § 9799.60 (relating to verification
of residence)[.]
____________________________________________
13 Pursuant to Pa.R.A.P. 126(b), non-precedential decisions of this Court filed
after May 1, 2019, may be cited for their persuasive value.
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18 Pa.C.S. § 4915.2(a)(2). To convict Munoz-Rodriguez of violating section
4915.2(a)(2), the Commonwealth was required to prove three elements: that
he (1) was subject to registration under section 9799.55 and (2) knowingly
(3) failed to follow the registration procedure specified in section 9799.60.
See Crenshaw, 306 A.3d at 388 & n.6. Munoz-Rodriguez does not challenge
the second or third elements, but rather contends that he was not subject to
registration under section 9799.55.
By way of background, Subchapter I of SORNA was enacted
in 2018 to prescribe registration requirements for sexual offenders
who, because they committed their offenses before December 20,
2012, could not be subject to the punitive requirements of the
original version of SORNA that is now codified in Subchapter H.[fn]
Within Subchapter I, § [9799.]54 (“Applicability”) indicates who
must register, § [9799.]55 (“Registration”) sets forth the offenses
that trigger a reporting requirement, and § [9799.]56
(“Procedures and applicability”) details the timing and length of
registration. All three statutes contain provisions specific to
individuals whose offenses were committed outside of this
Commonwealth.
[fn] See Commonwealth v. Lacombe, [] 234 A.3d 602,
628 ([Pa.] 2020) (Wecht, J., concurring and dissenting)
(explaining that, after our High Court ruled that retroactive
application of SORNA constituted an ex post facto violation,
the General Assembly “bifurcated SORNA within the
Sentencing Code into two distinct subchapters: Subchapter
H and Subchapter I. Subchapter H governs offenders whose
triggering crimes were committed on or after December 20,
2012. Subchapter I applies retroactively to those whose
offenses occurred before that date.” (footnote omitted)).
Id. (italics removed, footnote in original). In relevant part, section 9799.54
provides:
(a) Registration.--The following individuals shall register with
the Pennsylvania State Police as provided in this subchapter:
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…
(4) An individual who was convicted of an offense similar to
an offense set forth in section 9799.55 under the laws of …
another state … and who, as of February 21, 2018, has not
completed registration requirements. The period of
registration shall be as set forth in section 9799.56(b)(4)
(relating to registration procedures and applicability) less
any credit for time spent on a sexual offender registry of …
another state … or with the Pennsylvania State Police prior
to February 21, 2018.
42 Pa.C.S. § 9799.54(a)(4).
In turn, section 9799.55 provides, in pertinent part:
(a) Ten-year registration.--Except as provided under
subsection (a.1) or (b), the following individuals shall be required
to register with the Pennsylvania State Police for a period of 10
years:
(1)(i)(A) Individuals convicted within this Commonwealth of
any of the following offenses committed on or after April 22,
1996, but before December 20, 2012:
…
18 Pa.C.S. § 3126 (relating to indecent assault) where
the offense is graded as a misdemeanor of the first
degree or higher.
…
(3) Individuals who currently have a residence in this
Commonwealth who have been convicted of offenses similar
to the crimes cited in paragraphs (1)(i) or (ii) and (2) under
the laws of … another state[.]
(a.1) Exception to 10-year registration.--Except as provided
under subsection (b), an individual considered to be an offender
under section 9799.56(b) (relating to registration procedures and
applicability) shall be required to register with the Pennsylvania
State Police for a period less than life, the duration of which is to
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be determined under sections 9799.54 (relating to applicability)
and 9799.56(b).
(b) Lifetime registration.--The following individuals shall be
subject to lifetime registration:
(2) Individuals convicted:
(i)(A) in this Commonwealth of the following offenses,
if committed on or after April 22, 1996, but before
December 20, 2012:
…
18 Pa.C.S. § 3125 (relating to aggravated
indecent assault); or
…
(ii) of offenses similar to the crimes cited in
subparagraph (i) under the laws of … another state, …
if committed, or for which registration with the
Pennsylvania State Police under a former sexual
offender registration law of this Commonwealth was
required, on or after April 22, 1996, but before
December 20, 2012, who currently reside in this
Commonwealth.
42 Pa.C.S. § 9799.55. In other words, pursuant to section 9799.55, if Munoz-
Rodriguez’s conviction in Maryland is of an offense “similar” to one
enumerated in section 9799.55(b) (e.g., aggravated indecent assault), he is
subject to lifetime registration, but if his Maryland conviction is an offense
“similar” to one enumerated in section 9799.55(a), he is subject to a ten-year
registration requirement unless he is considered an “offender” under section
9799.56(b), in which case his registration period is determined by sections
9799.54 and 9799.56(b). See Crenshaw, 306 A.3d at 389.
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Section 9799.56(b) identifies subsets of certain out-of-state offenders
and mandates compliance with certain portions of Subchapter I. Id. at 389-
90. Section 9799.56(b) provides:
(b) Individuals convicted or sentenced by a court or
adjudicated delinquent in jurisdictions outside this
Commonwealth or sentenced by court martial.--
…
(4) An individual who has a residence, is employed or is a
student in this Commonwealth and who has been convicted
of or sentenced by a court or court martialed … who was
required to register under a sexual offender statute in the
jurisdiction where convicted, sentenced or court martialed,
shall register at an approved registration site within three
business days of the individual’s arrival in this
Commonwealth. The provisions of this subchapter shall
apply to the individual as follows:
(i) If the individual has been classified as a sexually
violent predator as defined in section 9799.53 or
determined under the laws of the other jurisdiction or
by reason of court martial to be subject to active
notification and lifetime registration on the basis of a
statutorily authorized administrative or judicial
decision or on the basis of a statute or administrative
rule requiring active notification and lifetime
registration based solely on the offense for which the
individual was convicted, sentenced or court
martialed, the individual shall, notwithstanding
section 9799.53, be considered a sexually violent
predator and subject to lifetime registration under
section 9799.55(b). The individual shall also be
subject to the provisions of this section and sections
9799.60 (relating to verification of residence),
9799.62 (relating to other notification) and
9799.63(c)(1) (relating to information made available
on Internet and electronic notification), except that
the individual shall not be required to receive
counseling unless required to do so by the other
jurisdiction or by reason of court martial.
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(ii) Except as provided in subparagraphs (i) and (iv),
if the individual has been convicted or sentenced by a
court or court martialed for an offense listed in section
9799.55(b) or an equivalent offense, the individual
shall, notwithstanding section 9799.53,[14] be
considered an offender and be subject to lifetime
registration under section 9799.55(b). The individual
shall also be subject to the provisions of this section
and sections 9799.60[15] and 9799.63(c)(2).[16]
(iii) Except as provided in subparagraphs (i), (ii), (iv)
and (v), if the individual has been convicted or
sentenced by a court or court martialed for an offense
listed in section 9799.55(a) or an equivalent offense,
the individual shall be, notwithstanding section
9799.53, considered an offender and subject to
registration under this subchapter. The individual
shall also be subject to the provisions of this section
and sections 9799.60 and 9799.63(c)(2). The
____________________________________________
14 See 42 Pa.C.S. § 9799.53 (defining “offender” as “[s]ubject to section
9799.75 (relating to construction of subchapter), an individual required to
register under section 9799.55(a), (b)(1) or (2) (relating to registration)”).
The rules for construing Subchapter I contained in § [9799.]75
indicate that nothing in the subchapter may be understood to
relieve an individual from the duty to register if the person
committed a sexually violent offense here or elsewhere,
regardless of whether the offense was designated as a sexually
violent one, or if the person was required to register under a prior
version of Megan’s Law, or would have been so required had our
Supreme Court not struck down the 2004 version in
Commonwealth v. Neiman, 624 Pa. 53,
84 A.3d 603 (2013).
See 42 Pa.C.S. § 9799.75(a).
Crenshaw, 306 A.3d at 390 n.11.
15 This section relates to verification of residence. 42 Pa.C.S. § 9799.60.
16 Subsection 9799.63(c)(2) pertains to information that is permitted to be
disclosed regarding individuals. See 42 Pa.C.S. § 9799.63 (relating to
information made available on the Internet and electronic notification).
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individual shall be subject to this subchapter for a
period of 10 years or for a period of time equal to the
time for which the individual was required to register
in the other jurisdiction or required to register by
reason of court martial, whichever is greater, less any
credit due to the individual as a result of prior
compliance with registration requirements.
(iv) Except as provided in subparagraph (i) and
notwithstanding subparagraph (v), if the individual is
subject to active notification in the other jurisdiction
or subject to active notification by reason of court
martial, the individual shall, notwithstanding section
9799.53, be considered an offender and subject to
this section and sections 9799.60, 9799.62 and
9799.63(c)(1). If the individual was convicted of or
sentenced in the other jurisdiction or sentenced by
court martial for an offense listed in section
9799.55(b) or an equivalent offense, the individual
shall be subject to this subchapter for the individual’s
lifetime. If the individual was convicted of or
sentenced in the other jurisdiction or sentenced by
court martial for an offense listed in section
9799.55(a) or an equivalent offense, the individual
shall be subject to this subchapter for a period of 10
years or for a period of time equal to the time for
which the individual was required to register in the
other jurisdiction or required to register by reason of
court martial, whichever is greater, less any credit due
to the individual as a result of prior compliance with
registration requirements. Otherwise, the individual
shall be subject to this subchapter for a period of time
equal to the time for which the individual was required
to register in the other jurisdiction or required to
register by reason of court martial, less any credit due
to the individual as a result of prior compliance with
registration requirements.
(v) Except as provided in subparagraphs (i), (ii), (iii)
and (iv), if the individual is subject to passive
notification in the other jurisdiction or subject to
passive notification by reason of court martial, the
individual shall, notwithstanding section 9799.53, be
considered an offender and subject to this section and
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sections 9799.60 and 9799.63(c)(2). The individual
shall be subject to this subchapter for a period of time
equal to the time for which the individual was required
to register in the other jurisdiction or required to
register by reason of court martial, less any credit due
to the individual as a result of prior compliance with
registration requirements.
42 Pa.C.S. § 9799.56(b)(4).17
The term “active notification” utilized in § 9799.56(b)(4)(i) and (iv) is
defined as follows:
Notification in accordance with section 9799.62 (relating to other
notification) or a process whereby law enforcement, pursuant to
the laws of … another state … notifies persons in the community
in which the individual resides, including a person identified in
section 9799.62(b), of the residence, employment or school
location of the individual.
42 Pa.C.S. § 9799.53. The term “passive notification” utilized in
section 9799.56(b)(4)(v) means:
Notification in accordance with section 9799.63 (relating to
information made available on Internet and electronic notification)
or a process whereby persons, under the laws of … another state
… are able to access information pertaining to an individual as a
result of the individual having been convicted or sentenced by a
court for an offense similar to an offense listed in section 9799.55
(relating to registration).
Id.
We discern nothing in the record to indicate that Munoz-Rodriguez was
classified in Maryland as a sexually violent predator or subject to active
____________________________________________
17 Subparagraphs (1) through (3) of subsection 9799.56(b) are reserved and
are not yet substantive provisions.
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notification there. Rather, his conviction obligated him to register in Maryland
for life and resulted in his registration information being made available for
public inspection. See Md. Code Ann., Crim. Proc. §§ 11-701(q)(2), 11-
707(a)(4)(iii), 11-717 (pertaining to registration statements made available
to public and listing registrants on the Internet); see also Petition to Withdraw
as Counsel, 9/7/2023, Ex. B (Munoz-Rodriguez’s Sex Offender Registration in
Maryland designating his offense category as tier III and registration term as
lifetime). Therefore, the only subparagraphs of section 9799.56(b)(4) that
could arguably apply to Munoz-Rodriguez to impose a duty to register are
subparagraphs (ii), (iii), and (v).
Subparagraphs (ii) and (iii) require a conviction outside of Pennsylvania
of an offense equivalent to one enumerated in subsection 9799.55(a) or (b).
Likewise, subparagraph (v), by statutory definition of the term “passive
notification,” requires the out-of-state offense for which the offender was
convicted to be similar to an offense listed in section 9799.55. 42 Pa.C.S.
§§ 9799.53, 9799.56(b)(4)(v); see also Crenshaw, 306 A.3d at 391.
Accordingly, unless the Maryland crime is equivalent or similar to an offense
listed in section 9799.55, Munoz-Rodriguez does not have a duty to register
under Subchapter I. See Crenshaw,
306 A.3d at 391.
We therefore turn our attention to whether Munoz-Rodriguez’s Maryland
conviction of a sexual offense of the third degree is equivalent to an offense
listed in section 9799.55, requiring him to register in Pennsylvania. In A.L.
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v. Pennsylvania State Police, 274 A.3d 1228 (Pa. 2022), our Supreme
Court set forth the framework for conducting an offense similarity analysis
under Subchapter H of SORNA.
The A.L. Court addressed whether sexual assault as defined under the
Uniform Code of Military Justice is comparable to sexual assault as defined
under the Pennsylvania Crimes Code so as to require lifetime registration as
a sexual offender under Subchapter H. A.L., 274 A.3d at 1230. While in the
Navy, A.L. had sexual intercourse with an adult victim while her ability to
consent was impaired by alcohol; he was convicted of sexual assault under
military law. Id. at 1230. After his discharge from the Navy, A.L. moved to
Pennsylvania and registered with the PSP as a sex offender. Id. The PSP
determined the military offense was comparable to the offense of sexual
assault in Pennsylvania, which is a tier III offense requiring lifetime
registration. Id. at 1231.
Utilizing jurisprudence of our appellate courts and the United States
Supreme Court in other contexts, our Supreme Court examined the use of an
element comparison method to determine whether two offenses are
comparable.18 Id. at 1232-34; see also Crenshaw, 306 A.3d at 392-93.
____________________________________________
18 The other contexts examined included an individual’s disqualification from
obtaining a commercial driver’s license or possessing a firearm; the
applicability of sentencing enhancements; and in relation to the Armed Career
Criminal Act (“ACCA”), the imposition of “a sentence enhancement upon
defendants convicted under federal law of being a felon in possession of a
(Footnote Continued Next Page)
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Examining the process for determining whether a prior conviction can be a
basis for sentencing enhancement under the ACCA, our High Court explained:
To evaluate whether a prior state conviction counts as an
ACCA predicate, the [U.S.] Supreme Court compares the elements
of the generic crime with the elements under state law, a method
it refers to as the “categorical approach.” Taylor v. United
States, 495 U.S. 575[] (1990). The sentencing court does not
focus on the particular facts underlying the predicate conviction
as to do so could entail an “elaborate factfinding process” that
would be impractical, including where the conviction was based on
a guilty plea. Id. at 601[]. The Court has articulated three
reasons for choosing this approach: Congress made the sentence
enhancement to depend on “convictions” not actions; any effort
at fact-finding for sentencing purposes would be problematic
under the Sixth Amendment; and “daunting” difficulties and
inequities would arise from a sentencing court’s effort at belated
fact-finding based on aged documents, especially when their
content is subject to interpretation. See Descamps [v. United
States], 570 U.S. [254,] 267-71 [2013]. [FN]3
[FN]3In terms of the inequities, the [U.S. Supreme] Court
pointed out that at the criminal proceedings in state court,
the defendant may have little incentive to correct errors that
do not really matter in that context and may have good
reason not to, as extraneous facts and arguments may
confuse the jury. Similarly, during a plea hearing, “the
defendant may not wish to irk the prosecutor or court by
squabbling about superfluous factual allegations.” Id. at
270[]. It would thus be unfair for a sentencing court, later
on, to use uncorrected (but erroneous) statements by the
prosecutor or judge as proof specific actions were taken in
committing the offense. See id. at 269-70[] (explaining the
only facts the ACCA sentencing court can be sure the jury
found are those constituting elements of the offense);
accord Mathis v. United States, 579 U.S. 500, 512-13[]
(2016).
____________________________________________
firearm, where the defendant has three prior convictions for certain violent
felonies” that usually occurred at the state level. See A.L., 274 A.3d at 1232-
34.
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With that said, the [U.S.] Supreme Court has also
consistently recognized that some state offenses are defined by a
“divisible” statute, meaning the statute gives alternative
elements, usually phrased in the disjunctive, that could make up
the offense. In such cases, the Court has approved what it calls
the “modified categorical approach,” allowing the sentencing court
to “consult a limited class of documents” from the conviction
record, such as indictments and jury instructions, to determine
the alternative element, and thus, the alternative crime, of which
the defendant was previously found guilty. Id. at 257[]; see also
Johnson v. United States, 559 U.S. 133, 144[] (2010)
(indicating the court can consider charging documents, plea
agreements, transcripts of plea colloquies, jury instructions,
verdict slips, and findings of fact and conclusions of law from a
bench trial); Nijhawan v. Holder, 557 U.S. 29, 35[] (2009).
Assuming the sentencing court can, in fact, determine from that
limited set of documents the specific alternative crime of which
the defendant was convicted, the court “can then do what the
categorical approach demands: compare the elements of the
crime of conviction (including the alternative element used in the
case) with the elements of the generic crime.” Descamps, 570
U.S. at 257[]. While this was first characterized as an “exception”
to the categorical approach, Shepard v. United States, 544 U.S.
13, 17[] (2005), the Court later clarified it was not an exception
but a “tool” because it “retains the categorical approach’s central
feature: a focus on the elements, rather than the facts, of a
crime.” Descamps, 570 U.S. at 263[].[FN]4
[FN]4 The [U.S.] Supreme Court has been careful to
distinguish alternative elements – which in reality define
different crimes – from alternative means of satisfying a
single element. It has clarified that the modified categorical
approach is not applicable to different means, as in that
instance the extra-jurisdictional offense sweeps more
broadly than the generic one. As well, considering the
means by which an element of the state offense was
committed leads to the inequities described above. See
supra note 3. See generally Mathis, 579 U.S. at 513[]
(recognizing the modified categorical approach serves only
“as a tool to identify the elements of the crime of conviction
when a statute’s disjunctive phrasing renders one (or more)
of them opaque”).
A.L., 274 A.3d at 1234-35 (emphasis in original).
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The A.L. Court adopted this approach, holding “the categorical approach
as described by the [United States] Supreme Court is to be applied when
ascertaining whether a prior extra-jurisdictional offense is ‘comparable’ or
‘equivalent’ under SORNA Subchapter H.”19 A.L., 274 A.3d at 1238. Our High
Court explained that this approach serves to “remove guesswork,
inconsistency, and ad hoc agency decision-making, [] promote the legislative
focus on prior convictions rather than prior actions,” and also “foreclose the
type of ‘daunting’ difficulties and potential unfairness the Supreme Court
pointed out would arise if a reviewing entity years later were to sift through
voluminous aged documents to ascertain exactly what the SORNA registrant
did (as opposed to what he was convicted of).” Id. at 1237-38.
Applying the categorical approach to the crimes in question in A.L.,
scienter was the only comparative element at issue between the two sexual
assault offenses. Under the military offense, the mens rea element requires
the victim’s impaired condition be “known or reasonably should be known” by
the defendant, whereas under the Pennsylvania statute, no scienter is
specified as to the victim’s non-consent, thereby defaulting to at least
____________________________________________
19 A.L. observed that our General Assembly has “express[ed] the concept of
similarity” in a variety of statutes, including Subchapter H of SORNA, using
“different adjectives such as ‘equivalent,’ ‘similar,’ ‘essentially similar,’
‘comparable,’ and ‘substantially the same’” without defining those terms.
A.L., 274 A.3d at 1236. Utilizing tools of statutory interpretation, the Court
concluded that the terms at issue there—“equivalent” and “comparable”—
were used interchangeably. See id. at 1236-38.
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recklessness. Id. at 1230-31 & n.2 (citing 18 Pa.C.S. § 302(c) (“When the
culpability sufficient to establish a material element of an offense is not
prescribed by law, such element is established if a person acts intentionally,
knowingly or recklessly with respect thereto.”)).
The A.L. Court found that the use of the word “or” in the mens rea
element of the military offense (the victim’s impaired condition “is known or
reasonably should be known” by the defendant) “is divisible in that it allows
for culpability if the defendant either knew of the victim’s impaired state or
reasonably should have known of it.” Id. at 1239. In other words, our High
Court concluded the military statute “effectively defines two crimes, one when
the victim’s impairment is known to the actor, and the other when that
impairment reasonably should be known but is not.” Id. at 1239-40.
However, because the military tribunal did not make any finding regarding
A.L.’s level of knowledge as to his victim’s impaired condition, “PSP lacked a
valid foundation to discern which of the two [crimes] formed the basis for the
military panel’s finding of guilt.” Id. Consequently, the A.L. Court concluded
that the military offense was not comparable to the Pennsylvania offense
because the military offense required a broader mens rea than Pennsylvania’s
statutory element of recklessness or above. Id. at 1240.
Of particular relevance here is the A.L. Court’s reliance on Mathis and
its holding that the modified categorical approach permits an evaluation solely
of the elements of the prior conviction and not the means of satisfying those
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elements. Mathis involved the imposition of a sentence enhancement under
the ACCA: where a defendant convicted of being a felon in possession of a
firearm also has three prior convictions for a violent felony, including burglary,
he is subject to a fifteen-year mandatory minimum sentence. Mathis, 579
U.S. at 503. Mathis pled guilty to being a felon in possession of a firearm and,
because he had five prior burglary convictions under Iowa law, the
government requested the sentence enhancement.
Id. at 507. The United
States Supreme Court reiterated its application of the modified categorical
approach as part of the categorial approach, comparing the elements of Iowa’s
burglary statute to those of the generic burglary offense under the ACCA to
determine whether a prior conviction is a predicate offense under the ACCA.
Id. at 504-06. The Mathis Court found that the Iowa crime involved “a
different kind of alternatively phrased law: not one that lists multiple elements
disjunctively, but instead one that enumerates various factual means of
committing a single element.”
Id. at 506 (citation omitted). Specifically,
under the Iowa statute, burglary required the unlawful entry into any
“building, structure, [or] land, water, or air vehicle”; the generic burglary
offense required unlawful entry into a “building or other structure.”
Id. at
503-04, 507. The High Court noted that under Iowa law, that broader list of
places where a burglary could occur are not alternative elements but rather
constitute “alternative ways of satisfying a single locational element.”
Id. at
507.
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The United States Supreme Court ultimately concluded that because the
elements of Iowa’s burglary statute were broader than those of the generic
burglary statute, Mathis’ prior convictions could not give rise to the ACCA’s
sentence enhancement. Id. at 520. Examining the decision of the Eighth
Circuit Court of Appeals below, the Mathis Court observed that the court held
that although “structures” and “vehicles” under the Iowa statute were not
separate elements, the sentencing court could still use the modified
categorical approach because the record showed that Mathis had burgled
structures.
Id. at 508. In reversing, the High Court explained: “How a given
defendant actually perpetrated the crime—what [it has] referred to as the
‘underlying brute facts or means’ of commission—makes no difference; even
if his conduct fits within the generic offense, the mismatch of elements saves
the defendant from an ACCA sentence.”
Id. at 509 (citation omitted). The
Court recognized that the
rule can seem counterintuitive. In some cases, a sentencing judge
knows (or can easily discover) that the defendant carried out a
“real” burglary, even though the crime of conviction also extends
to other conduct. No matter. Under ACCA, it is impermissible for
a particular crime to sometimes count towards enhancement and
sometimes not, depending on the facts of the case. Accordingly,
a sentencing judge may look only to the elements of the offense,
not to the facts of the defendant’s conduct.
Id. at 510 (citations, brackets, and some quotation marks omitted). It
reasoned, however, that “a statute’s listing of disjunctive means does nothing
to mitigate the possible unfairness of basing an increased penalty on
something not legally necessary to a prior conviction.”
Id. at 513.
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Mathis plainly instructed that the “first task for a sentencing court faced
with an alternatively phrased statute is thus to determine whether its listed
items are elements or means.” Id. at 517. It emphasized that “the modified
approach serves—and only serves—as a tool to identify the elements of the
crime of conviction when a statute’s disjunctive phrasing renders one (or
more) of them opaque” and “is not to be repurposed as a technique for
discovering whether a defendant’s prior conviction, even though for a too-
broad crime, rested on facts (or otherwise said, involved means) that also
could have satisfied the elements of the generic offense.”
Id. at 513-14
(citation omitted).
We have since adopted the categorical approach for assessing similarity
under Subchapter I of SORNA. In Crenshaw, we reasoned that because “the
term ‘similar’ is likewise not defined in Subchapter I, the same risks of
inconsistency and guesswork are plainly implicated [thereunder] as those that
compelled the A.L. Court to adopt the categorical approach in applying
Subchapter H.” Crenshaw, 306 A.3d at 394.
Instantly, the Maryland statute to which Munoz-Rodriguez pled guilty
proscribes a sexual offense of the third degree, providing, in pertinent part,
that a person may not “engage in sexual contact with another if the victim is
under the age of 14 years, and the person performing the sexual contact is at
least 4 years older than the victim.” Md. Code Ann., Crim. Law § 3-307(a)(3).
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At the time Munoz-Rodriguez was convicted, sexual contact was defined as
follows:
(f)(1) “Sexual contact”, as used in §§ 3-307 and 3-308 of this
subtitle, means an intentional touching of the victim’s or actor’s
genital, anal, or other intimate area for sexual arousal or
gratification, or for the abuse of either party.
(2) “Sexual contact” includes an act:
(i) in which a part of an individual’s body, except the penis,
mouth, or tongue, penetrates, however slightly, into
another individual’s genital opening or anus; and
(ii) that can reasonably be construed to be for sexual
arousal or gratification, or for the abuse of either party.
(3) “Sexual contact” does not include:
(i) a common expression of familial or friendly affection; or
(ii) an act for an accepted medical purpose.
Md. Code Ann., Crim. Law § 3-301(f) (effective to September 30, 2007).20
____________________________________________
20 The definition of “sexual contact” has since been changed. It is now defined
as follows:
(e)(1) “Sexual contact”, as used in §§ 3-307, 3-308, and 3-314 of
this subtitle, means an intentional touching of the victim’s or
actor’s genital, anal, or other intimate area for sexual arousal or
gratification, or for the abuse of either party.
(2) “Sexual contact” does not include:
(i) a common expression of familial or friendly affection; or
(ii) an act for an accepted medical purpose.
Md. Code Ann., Crim. Law § 3-301(e).
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The Commonwealth and PCRA counsel represented that Munoz-
Rodriguez is subject to lifetime registration under SORNA based upon the
PSP’s determination that his Maryland offense was similar to aggravated
indecent assault which, as noted above, is an offense enumerated under
section 9799.55(b). See Munoz-Rodriguez, 285 MDA 2022, 2023 WL
2581851, at *1; see also generally Munoz-Rodriguez’s Brief,
Commonwealth’s Brief. Munoz-Rodriguez contests this position, but contends
instead that his Maryland conviction is similar to subsection (a)(7) of
Pennsylvania’s indecent assault statute which, as noted above, is an offense
enumerated under section 9799.55(a). See Munoz-Rodriguez’s Brief at 6, 8,
16-18, 27, 29-32, 34, 37; see also PCRA Petition, 8/9/2021, at 5, ¶¶ 25, 28,
32.
The PCRA court weighed the question of whether Munoz-Rodriguez’s
Maryland conviction was similar to Pennsylvania’s crime of aggravated
indecent assault or indecent assault. It ultimately concluded that because
Munoz-Rodriguez pled guilty to digitally penetrating a twelve-year-old victim’s
vagina, the PSP correctly determined the Maryland offense was similar to
Pennsylvania’s aggravated indecent assault, obligating him to register for life
under Subchapter I of SORNA. See PCRA Court Opinion, 10/20/2023, at 13-
14.
We first examine Pennsylvania’s aggravated indecent assault statute,
which provides, in relevant part, as follows:
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(a) Offenses defined.--Except as provided in sections 3121
(relating to rape), 3122.1 (relating to statutory sexual assault),
3123 (relating to involuntary deviate sexual intercourse) and
3124.1 (relating to sexual assault), a person who engages in
penetration, however slight, of the genitals or anus of a
complainant with a part of the person’s body for any purpose other
than good faith medical, hygienic or law enforcement procedures
commits aggravated indecent assault if:
…
(8) the complainant is less than 16 years of age and the
person is four or more years older than the complainant and
the complainant and the person are not married to each
other.
18 Pa.C.S. § 3125(a)(8).
Beginning with the first element—the age of the victim—a third-degree
sexual offense in Maryland can be established if the victim is under fourteen
years old and the actor is at least four years older, while in Pennsylvania,
under subsection (a)(8), the complainant has to be under sixteen years old
with the actor at least four years older. Accordingly, if a person is convicted
of subsection (a)(3) of third-degree sexual offense in Maryland, the age
element will always be met for subsection (a)(8) of aggravated indecent
assault in Pennsylvania.
Examining the purpose element, subsection (a)(3) of third-degree
sexual offense in Maryland must be done for sexual arousal, gratification, or
abuse, with exceptions for medical purposes and common expressions of
familial or friendly affection. Aggravated indecent assault in Pennsylvania is
done for any purpose except medical, hygienic, or law enforcement
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procedures. The purpose element is therefore narrower in Maryland, resulting
in the third-degree sexual offense conviction always meeting the purpose
element of aggravated indecent assault.
The mens rea element is also narrower in the Maryland statute.
Compare Md. Code Ann., Crim. Law §§ 3-301(f) (effective to September 30,
2007) (defining sexual contact and requiring it to be intentional), 3-307(a)(3)
(requiring sexual contact), with 18 Pa.C.S. §§ 302(c) (“When the culpability
sufficient to establish a material element of an offense is not prescribed by
law, such element is established if a person acts intentionally, knowingly or
recklessly with respect thereto.”), 3125.
Lastly, turning to the prohibited conduct—the physical contact with the
victim—a third-degree sexual offense conviction in Maryland requires “an
intentional touching” of the victim’s or defendant’s genital, anal, or other
intimate area, whereas aggravated indecent assault in Pennsylvania requires
“penetration, however slight,” of the victim’s genitals or anus with a part of
the actor’s body. Although the version of the Maryland statute defining
“sexual contact” under which Munoz-Rodriguez was convicted specifically
stated that the crime includes penetration, it was not a requisite element of
the crime as it is under Pennsylvania law.21 Thus, the physical contact element
____________________________________________
21As this Court observed in Munoz-Rodriguez’s first appeal, Attorney Hoke
and the Commonwealth addressed the similarity of the Maryland and
Pennsylvania offenses based on the facts of Munoz-Rodriguez’s conviction.
(Footnote Continued Next Page)
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is broader in Maryland and a person convicted of subsection (a)(3) of third-
degree sexual offense does not necessarily meet that element of aggravated
indecent assault in Pennsylvania because penetration is not required in
Maryland, it is simply a means by which a person can commit the offense.
See Mathis, 579 U.S. at 513-14; A.L., 274 A.3d at 1235 n.4. Further, the
Maryland statute is broader in that an actor and victim can be married to each;
in Pennsylvania, if they are married, the actor could not be convicted of
aggravated indecent assault.
Although the PCRA court employed an element comparison test for
similarity, it impermissibly relied on Munoz-Rodriguez’s admission at his guilty
plea hearing that he digitally penetrated the victim’s vagina to find his
conviction similar to aggravated indecent assault in Pennsylvania. See PCRA
Court Opinion, 10/20/2023, at 13. We agree that if we could employ such an
analysis, the factual basis for Munoz-Rodriguez’s guilty plea would meet all
elements of the offense of aggravated indecent assault in Pennsylvania. From
the notes of testimony of his guilty plea hearing, we know that Munoz-
Rodriguez digitally penetrated a twelve-year-old victim’s vagina, which would
satisfy the penetration requirement of aggravated assault statute. See
Turner/Finley No-Merit Letter, 9/7/2023, Ex. A (N.T. (Guilty Plea Hearing),
____________________________________________
See Turner/Finley No-Merit Letter, 9/7/2023, ¶¶ 19(1)(k)-(p);
Commonwealth’s Brief at 11-18; see also Munoz-Rodriguez, 285 MDA
2022, 2023 WL 2581851, at *4 n.4.
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8/27/2003). The law is clear, however, that we are prohibited from looking
at the means by which Munoz-Rodriguez perpetrated the crime in Maryland.
See A.L., 274 A.3d at 1234-35, nn. 3, 4; see also Mathis, 579 U.S. at 518
(stating that “if a statutory list is drafted to offer ‘illustrative examples,’ then
it includes only a crime’s means of commission”) (citations omitted).
Based upon the foregoing, we conclude that Munoz-Rodriguez’s
conviction of third-degree sexual offense is not equivalent or similar to a
conviction of aggravated indecent assault for purposes of Subchapter I of
SORNA. See Crenshaw, 306 A.3d at 397; accord A.L., 274 A.3d at 1238-
40. As a result, Munoz-Rodriguez was not subject to lifetime registration
requirements pursuant to sections 9799.54(a)(4), 9799.55(b) and
9799.56(b)(4)(ii).
This does not end our inquiry. As stated throughout this decision,
Munoz-Rodriguez repeatedly asserted both below and before this Court that
although his Maryland conviction is not similar to Pennsylvania’s aggravated
assault, it is similar to Pennsylvania’s indecent assault statute under
subsection (a)(7). See Munoz-Rodriguez’s Brief at 6, 8, 16-18, 27, 29-32,
34, 37; see also PCRA Petition, 8/9/2021, at 5, ¶¶ 25, 28, 32. The relevant
portion of our indecent assault statute provides as follows:
(a) Offense defined.--A person is guilty of indecent assault if
the person has indecent contact with the complainant, causes the
complainant to have indecent contact with the person or
intentionally causes the complainant to come into contact with
seminal fluid, urine or feces for the purpose of arousing sexual
desire in the person or the complainant and:
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…
(7) the complainant is less than 13 years of age[.]
18 Pa.C.S. § 3126(a)(7).
Indecent contact is defined as “[a]ny touching of the sexual or other
intimate parts of the person for the purpose of arousing or gratifying sexual
desire, in any person.” 18 Pa.C.S. § 3101. Intimate parts are any “‘body part
that is personal and private, and which the person ordinarily allows to be
touched only by people with whom the person has a close personal
relationship, and one which is commonly associated with sexual relations or
intimacy.’” Crenshaw, 306 A.3d at 395 (quoting Commonwealth v.
Gamby,
283 A.3d 298, 313-14 (Pa. 2022) (holding the neck is an intimate
body part)).
As stated above, “Subchapter I requires registration following conviction
for committing an indecent assault, or attempting to do so, only if it is graded
as a first-degree misdemeanor or higher.” Id. (citing 42 Pa.C.S.
§ 9799.55(a)(1)(i)(A)). The indecent assault statute is graded as follows:
(b) Grading.--Indecent assault shall be graded as follows:
(1) An offense under [18 Pa.C.S. § 3126](a)(1) or (8) is a
misdemeanor of the second degree.
...
(3) An offense under [18 Pa.C.S. § 3126](a)(7) is a
misdemeanor of the first degree unless any of the following
apply, in which case it is a felony of the third degree:
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(i) It is a second or subsequent offense.
(ii) There has been a course of conduct of indecent
assault by the person.
(iii) The indecent assault was committed by touching
the complainant’s sexual or intimate parts with sexual
or intimate parts of the person.
(iv) The indecent assault is committed by touching the
person’s sexual or intimate parts with the
complainant’s sexual or intimate parts.
18 Pa.C.S. § 3126(b)(1), (3).
Therefore, as this Court observed in Crenshaw, “for indecent assault
to trigger Subchapter I registration, not only must there be physical touching
of intimate parts for purposes of arousing sexual desire, but the complainant
also had to be under the age of thirteen.” 306 A.3d at 396; see also 18
Pa.C.S. § 3126(a)(7), (b)(3). Put another way, we only look to subsection
(a)(7) of our indecent assault statute, graded at a minimum as a first-degree
misdemeanor, to determine whether Munoz-Rodriguez’s Maryland conviction
is equivalent or similar thereto, triggering registration requirements under
Subchapter I of SORNA.
We therefore employ the categorical approach to determine if Munoz-
Rodriguez’s Maryland conviction is similar to a conviction under subsection
(a)(7). Beginning with the purpose element, the Maryland statute requires
the offense be done for sexual arousal or gratification, or the abuse of either
party (with exceptions for medical purposes and common expressions of
familial or friendly affection), whereas the Pennsylvania statute requires
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arousing sexual desire in any person. Accordingly, the Maryland statute is
narrower as to this element.
For the element of physical contact, the statutes both require touching
of sexual or intimate parts, but Maryland is narrower because Pennsylvania
also includes the actor intentionally causing the complainant to come into
contact with seminal fluid, urine, or feces.
The mens rea element is narrower in the Maryland statute. Compare
Md. Code Ann., Crim. Law §§ 3-301(f) (effective to September 30, 2007), 3-
307(a)(3), with 18 Pa.C.S. §§ 302(c), 3126(a).
However, with respect to age, a third-degree sexual offense in Maryland
can be established if the victim is under fourteen and the actor is at least four
years older, whereas in Pennsylvania, subsection (a)(7) requires the
complainant be under thirteen. The Maryland statute is therefore broader in
this respect. See Crenshaw, 306 A.3d at 397 (holding that the North
Carolina offense at issue (taking indecent liberties with children) was broader
than the Pennsylvania offense of indecent assault and thus, not similar for
purposes of Subchapter I of SORNA based, in part, on the offenses’ different
age requirements).
Based upon the foregoing, we conclude that Munoz-Rodriguez’s
Maryland conviction of third-degree sexual offense is not equivalent to a
conviction for indecent assault for purposes of Subchapter I of SORNA. See
Crenshaw, 306 A.3d at 397; accord A.L., 274 A.3d at 1238-40. As a result,
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Munoz-Rodriguez was not subject to any registration requirements pursuant
to sections 9799.54(a)(4); 9799.55(a) and (a.1); and 9799.56(b)(4)(iii) or
(v) of SORNA.22 Consequently, in order to “remove guesswork, inconsistency,
and ad hoc agency decision-making,” “promote the legislative focus on prior
convictions rather than prior actions,” and foreclose difficulties and potential
unfairness in looking to the facts of a defendant’s conduct, we are constrained
to reverse the order of the PCRA court, vacate Munoz-Rodriguez’s judgment
of sentence, reverse his conviction, and order him discharged. See A.L., 274
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22 While Munoz-Rodriguz purports to concede that his Maryland conviction
is similar to Pennsylvania’s indecent assault statute, we are prohibited from
accepting his averment as a judicial admission because it is a conclusion of
law. See John B. Conomos, Inc. v. Sun Co., Inc. (R&M), 831 A.2d 696,
713 (Pa. Super. 2003) (“Judicial admissions are limited in scope to factual
matters otherwise requiring evidentiary proof, and are exclusive of legal
theories and conclusions of law.”) (citation omitted).
We nonetheless observe, however, that, contrary to the arguments
advanced by Munoz-Rodriguez and the Commonwealth, as well as the
statements made by the PCRA court, if the Maryland conviction was similar to
indecent assault under subsection (a)(7), Munoz-Rodriguez would be
obligated to register for life under Subchapter I of SORNA. See Munoz-Rodriguez’s Brief at 6, 32, 37; Commonwealth’s Brief at 3, 11, 16; PCRA Court
Opinion, 10/20/2023, at 10 (“If the sexual offense to which [Munoz-Rodriguez] entered a plea of guilty was similar to indecent assault under
Pennsylvania law, 18 Pa.C.S. § 3126, [Munoz-Rodriguez’s] registration period
was ten years.”)). Because the similar conviction under Pennsylvania law
required Munoz-Rodriguez to register for life in Maryland, sections
9799.54(a)(4), 9799.55(a.1), and 9799.56(b)(4)(iii) or (v) would have
extended his duration of registration to the lifetime period imposed by
Maryland law. Consequently, Munoz-Rodriguez would have had a lifetime
obligation to register under Subchapter I of SORNA and his conviction
pursuant to 18 Pa.C.S. § 4915.2(a)(2) would be sound.
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A.3d at 1237-38; see also Crenshaw, 306 A.3d at 397 (vacating appellants’
judgments of sentence for failing to register pursuant to Subchapter I of
SORNA where appellants’ North Carolina convictions for taking indecent
liberties with children were not similar to the offense of indecent assault in
Pennsylvania for purposes of Subchapter I of SORNA and thus, they had no
obligation to register and could not validly be convicted under 18 Pa.C.S.
§ 4915.2 for failing to do so).23
Order reversed. Judgment of sentence vacated. Conviction reversed.
Munoz-Rodriguez discharged. Jurisdiction relinquished.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 10/30/2024
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23 In his second issue, Munoz-Rodriguez asks us to review the PCRA court’s
grant of Attorney Hoke’s petition to withdraw pursuant to Turner/Finley.
Notably, he does not argue that Attorney Hoke did not comply with the
technical requirements of Turner/Finley—in fact, he agrees that she satisfied
them. See Munoz-Rodriguez’s Brief at 42. Rather, in his brief, Munoz-Rodriguez takes issue with the effectiveness of plea and PCRA counsel,
attacking their purported failures to properly analyze the elements of Maryland
conviction as compared to Pennsylvania’s aggravated indecent assault statute.
Id. at 36-45. In light of our disposition, we need not address Munoz-Rodriguez’s second issue.
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