J-A05015-22
2022 PA Super 98
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN ANDREW WOLF :
:
Appellant : No. 1070 MDA 2021
Appeal from the Judgment of Sentence Entered May 18, 2021
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0000444-2020
BEFORE: OLSON, J., KUNSELMAN, J., and STEVENS, P.J.E.*
OPINION BY OLSON, J.: FILED: MAY 27, 2022
Appellant, Brian Andrew Wolf, appeals from the judgment of sentence
entered on May 18, 2021, as made final by the denial of Appellant’s
post-sentence motion on July 15, 2021. We affirm.
On November 5, 2020, Appellant entered a negotiated guilty plea to
indecent assault.1, 2 During the plea colloquy, Appellant admitted to the
following:
On or about October 20[, 2019, Appellant], whose date of
birth is November 9[, 1982,] while working as the manager
at Taco Bell . . . did have indecent contact with a juvenile
female [whose] initials are L.C. and [who was born in 2004],
by placing his hand down her shirt into her bra and touching
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. § 3126(a)(1).
2 In exchange for Appellant’s plea, the Commonwealth agreed to recommend
a sentence of two years of probation. N.T. Guilty Plea Hearing, 11/5/20, at 6.
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her breasts skin to skin, he touched her butt outside of her
clothes, and he did then press his body against her and did
kiss her without her consent.
N.T. Guilty Plea Hearing, 11/5/20, at 5-6.
The trial court accepted Appellant’s plea and deferred sentencing so that
the State Sexual Offenders Assessment Board (“SOAB”) could evaluate
Appellant and recommend whether Appellant should be classified as a sexually
violent predator (“SVP”) in accordance with the Sex Offender Registration and
Notification Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.10-9799.42. See also 42
Pa.C.S.A. § 9799.24 (delineating procedure for assessment of individuals
convicted of sexually violent offenses). As the trial court explained:
After [the court-ordered] evaluation, Dr. Veronique Valliere
of the [SOAB] did not recommend that [Appellant] be found
to be [an SVP]. On May 18, 2021, after a review of the report
of Dr. Valliere, [the trial court] ordered that [Appellant] was
not designated [an SVP]. On May 18, 2021, the [trial court]
sentenced [Appellant] to a [term] of two years of probation,
in accordance with the negotiated plea agreement.
[Appellant] was [then] apprised of his [automatic, 15-year]
SORNA registration requirement[] at the sentencing hearing.
...
[Appellant filed a post-sentence motion] on June 1, 2021 and
[Appellant’s] counsel requested nunc pro tunc [treatment].
On June 4, 2021, [the trial court granted Appellant the right
to file his post-sentence motion nunc pro tunc] and a hearing
was scheduled on the merits of the [post-sentence] motion
on June 14, 2021. On June 15, 2021, the [trial court denied
Appellant’s post-sentence motion].
Trial Court Opinion, 9/3/21, at 1.
Appellant filed a timely notice of appeal. He raises two issues to this
Court:
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[1.] Whether the automatic registration requirements of
Subchapter H of [SORNA] constitute an illegal sentence that
violates the due process clause of the [United States] and
[Pennsylvania] Constitutions because they are impermissibly
punitive, based on an irrebuttable false presumption, and do
not require a finding of guilt beyond a reasonable doubt[?]
[2.] Whether Appellant’s being sentenced to a term of
registration as a sex[] offender was also more specifically
illegal in that – as he was determined not to be a sexually
violent predator, by virtue of not being considered “likely to
engage in predatory sexually violent offenses” – it was
illogical and contradictory of neighboring provisions of the
same SORNA statute to sentence him to a term of registration
as a sex[] offender by virtue of his being “likely to engage in
predatory sexually violent offenses”[?]
Appellant’s Brief at 5.
First, Appellant claims that his obligation to register as a sexual offender
under SORNA constitutes an illegal sentence. According to Appellant, this
registration obligation – which arises automatically under Revised Subchapter
H of SORNA – violates the due process clause of the United States and
Pennsylvania Constitutions, as it is “impermissibly punitive, based on an
irrebuttable false presumption, and [does] not require a finding of guilt beyond
a reasonable doubt.” Id.
Appellant's challenge to the constitutionality of his registration
requirement under SORNA raises a question of law. Commonwealth v.
Morgan, 258 A.3d 1147, 1152 (Pa. Super. 2021) (stating, “[w]hen an
appellant challenges the constitutionality of a statute, the appellant presents
this Court with a question of law”). As with all questions of law, our standard
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of review is de novo and our scope of review is plenary. Commonwealth v.
Lacombe, 234 A.3d 602, 608 (Pa. 2020).
In addressing constitutional challenges to legislative
enactments, [such as SORNA, appellate courts] are ever
cognizant that the General Assembly may enact laws which
impinge on constitutional rights to protect the health, safety,
and welfare of society, but also that any restriction is subject
to judicial review to protect the constitutional rights of all
citizens. We emphasize that a party challenging a statute
must meet the high burden of demonstrating that the statute
clearly, palpably, and plainly violates the Constitution.
Commonwealth v. Torsilieri, 232 A.3d 567, 575 (Pa. 2020) (citations and
quotation marks omitted).
Appellant was subject to an automatic, 15-year registration requirement
as a sexual offender, pursuant to Revised Subchapter H of SORNA, as he
committed indecent assault on or after December 20, 2012.3 On appeal,
Appellant contends that this automatic registration requirement violates his
due process rights, and constitutes an illegal sentence, because it is
____________________________________________
3 See 42 Pa.C.S.A. § 9799.12 (defining “sexual offender” as an “individual
who has committed a sexually violent offense” and defining “sexually violent
offense” as an “offense specified in section 9799.14 . . . as a Tier I, Tier II or
Tier III sexual offense committed on or after December 20, 2012, for which
the individual was convicted”); 42 Pa.C.S.A. § 9799.14(b)(6) (declaring that
Appellant’s indecent assault conviction under 18 Pa.C.S.A. § 3126(a)(1)
constitutes a Tier I sexual offense); 42 Pa.C.S.A. § 9799.13(1) (declaring that
a “sexual offender who has a residence within” Pennsylvania must “register
with the Pennsylvania State Police as provided in sections 9799.15”); 42
Pa.C.S.A. § 9799.15(a)(1) (“an individual specified in section 9799.13
(relating to applicability) shall register with the Pennsylvania State Police as
follows: (1) An individual convicted of a Tier I sexual offense . . . shall register
for a period of 15 years”).
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“impermissibly punitive, based on an irrebuttable false presumption, and
[does] not require a finding of guilt beyond a reasonable doubt.” See
Appellant’s Brief at 10. Appellant’s substantive claims echo those made in
Torsilieri. However, where the Torsilieri Court held that remand was
required, so that the trial court could “provide both parties an opportunity to
develop arguments and present additional evidence and to allow the trial court
to weigh that evidence in determining whether [the defendant] has refuted
the relevant legislative findings supporting the challenged registration and
notification provisions of Revised Subchapter H,” Appellant in the case at bar
asks that we simply deem the registration requirement unconstitutional as a
matter of law without further evidentiary development. See Torsilieri, 232
A.3d at 596; Appellant’s Brief at 11-12. Appellant’s claim fails.
We detail the factual and procedural history of Torsilieri, as we believe
that case offers dispositive guidance in the resolution of the issues presently
before us. In Torsilieri, the defendant was convicted of aggravated indecent
assault in 2017. Prior to sentencing, the SOAB concluded that the defendant
“did not meet the criteria for designation as [an SVP].” Torsilieri, 232 A.3d
at 572; see also Torsilieri, 232 A.3d at 572 n.2 (noting that the defendant
“was not designated an SVP”). The trial court then sentenced the defendant
to serve a term of incarceration, followed by a term of probation, and notified
the defendant that his “aggravated indecent assault conviction automatically
categorized him as a Tier III offender, triggering lifetime sexual offender
registration pursuant to all applicable versions of SORNA.” Id. at 573.
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Since the defendant in Torsilieri committed his crime on or after
December 20, 2012, Revised Subchapter H of SORNA applied to the
defendant. See id.; see also 42 Pa.C.S.A. § 9799.12 (defining “sexual
offender” as an “individual who has committed a sexually violent offense” and
defining “sexually violent offense” as an “offense specified in section 9799.14
. . . as a Tier I, Tier II or Tier III sexual offense committed on or after
December 20, 2012, for which the individual was convicted”). Moreover, while
post-sentence motions were pending, the General Assembly twice amended
SORNA and revised Subchapter H of the Act.
The defendant amended his post-sentence motion and claimed that the
registration and notification provisions in Revised Subchapter H were
unconstitutional and violated his right to due process, as they utilized an
irrebuttable presumption of future dangerousness and recidivism. See
Torsilieri, 232 A.3d at 574-575. Further, the defendant claimed that Revised
Subchapter H was punitive and “violated [Alleyne v. United States, 570 U.S.
99 (2013) and Apprendi v. New Jersey,
530 U.S. 466 (2000)] by allowing
the imposition of enhanced punishment based on an irrebuttable presumption
of future dangerousness that is neither determined by the finder of fact nor
premised upon proof beyond a reasonable doubt.” See
id. The trial court
held a hearing on the defendant’s motion, where the court “allowed [the
defendant] to introduce affidavits and supporting documents of three experts
concluding that sexual offenders generally have low recidivism rates and
questioning the effectiveness of sexual offender registration systems such as
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SORNA.” Id. at 574. The Commonwealth “did not offer any rebuttal expert
testimony nor did it offer any documents with respect to these witnesses.”
Id. (quotation marks and brackets omitted).
Following the hearing, the trial court concluded that the registration and
notification provisions of Revised Subchapter H were unconstitutional.
Therefore, the trial court “vacated [the defendant’s] sentence to the extent it
required him to comply with Revised Subchapter H's sexual offender
registration provisions.” Id. at 575. The Commonwealth then appealed to
the Pennsylvania Supreme Court.
On appeal, the Commonwealth first claimed that the trial court erred
when it allowed the defendant to introduce scientific evidence during the
post-sentence motion hearing. Id. at 582. The defendant introduced this
evidence in an attempt to “undermine[] the validity of the legislative findings
supporting Revised Subchapter H’s registration and notification provisions.”4
____________________________________________
4 The legislative findings are contained in 42 Pa.C.S.A. § 9799.11(a). This
subsection declares:
(a) Legislative findings.--The General Assembly finds as
follows:
(1) In 1995 the General Assembly enacted . . . Megan's Law.
Through this enactment, the General Assembly intended to
comply with legislation enacted by Congress requiring that
states provide for the registration of sexual offenders. The
Federal statute, the Jacob Wetterling Crimes Against Children
and Sexually Violent Offender Registration Act (Public Law
103-322, 42 U.S.C. 14071 et seq.), has been superseded by
(Footnote Continued Next Page)
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____________________________________________
the Adam Walsh Child Protection and Safety Act of 2006
(Public Law 109-248, 120 Stat. 587).
(2) This Commonwealth's laws regarding registration of sexual
offenders need to be strengthened. The Adam Walsh Child
Protection and Safety Act of 2006 provides a mechanism for
the Commonwealth to increase its regulation of sexual
offenders in a manner which is nonpunitive but offers an
increased measure of protection to the citizens of this
Commonwealth.
(3) If the public is provided adequate notice and information
about sexual offenders, the community can develop
constructive plans to prepare for the presence of sexual
offenders in the community. This allows communities to meet
with law enforcement to prepare and obtain information about
the rights and responsibilities of the community and to provide
education and counseling to residents, particularly children.
(4) Sexual offenders pose a high risk of committing additional
sexual offenses and protection of the public from this type of
offender is a paramount governmental interest.
(5) Sexual offenders have a reduced expectation of privacy
because of the public's interest in public safety and in the
effective operation of government.
(6) Release of information about sexual offenders to public
agencies and the general public will further the governmental
interests of public safety and public scrutiny of the criminal
and mental health systems so long as the information released
is rationally related to the furtherance of those goals.
(7) Knowledge of whether a person is a sexual offender could
be a significant factor in protecting oneself and one's family
members, or those in care of a group or community
organization, from recidivist acts by such offenders.
(8) The technology afforded by the Internet and other modern
electronic communication methods makes this information
readily accessible to parents, minors and private entities,
(Footnote Continued Next Page)
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See id. at 585. The Commonwealth, however, claimed that the trial court
should not have “second-guess[ed]” the legislative findings and public policy
judgments of the General Assembly. Specifically, the Commonwealth argued,
the trial court should have: 1) “defer[red] to the legislative determination
that sexual offenders as a cohort pose a danger to the public health due to
their high risk of recidivation” and 2) accepted “the legislative conclusion that
tier-based sexual offender registration systems, as exemplified by Revised
Subchapter H, are an effective means of protecting the public from the danger
posed by sexual offenders.” Id. at 582.
The Torsilieri Court acknowledged that “substantial policy
considerations [] are generally reserved, in the first instance, to the General
Assembly.” Id. at 583 (quotation marks and citations omitted). Nevertheless,
the Court held that its “deference to legislative determination[s] is not
boundless” and that the legislature’s policy determinations were “subject to
the limits of the Constitution.” Id. (quotation marks and citations omitted).
The Supreme Court thus held:
a viable challenge to legislative findings and related policy
determinations can be established by demonstrating a
consensus of scientific evidence where the underlying
legislative policy infringes constitutional rights. In such
cases, it is the responsibility of the court system to protect
the rights of the public. Indeed, we have a particular
____________________________________________
enabling them to undertake appropriate remedial precautions
to prevent or avoid placing potential victims at risk.
42 Pa.C.S.A. § 9799.11(a) (footnotes omitted).
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responsibility in regard to SORNA, given that only a decision
by this Court, finding select provisions unconstitutional under
[] Pennsylvania's charter, can safeguard the constitutional
rights of Pennsylvanians while also potentially averting the
loss of federal funding due to Pennsylvania's non-compliance
with the federal Adam Walsh Act.
Accordingly, we respectfully reject the [Commonwealth’s]
categorical contention that the trial court lacked the authority
to consider [the defendant’s] scientific evidence and to
question the validity of the General Assembly's findings and
policy determinations in regard to the contention that [the
defendant’s] various constitutional rights were violated by
the statutory provisions based upon the legislative
determinations. Nevertheless, we remain mindful that the
wisdom of a public policy is one for the legislature, and the
General Assembly's enactments are entitled to a strong
presumption of constitutionality rebuttable only by a
demonstration that they clearly, plainly, and palpably violate
constitutional requirements.
Id. at 584 (quotation marks and citations omitted).
The Torsilieri Court further held that the defendant’s evidence “pose[d]
colorable constitutional challenges to Revised Subchapter H’s registration and
notification provisions based upon his asserted refutation of two critical
legislative determinations: (1) that all sexual offenders pose a high risk of
recidivation and (2) that the tier-based registration system of Revised
Subchapter H protects the public from the alleged danger of recidivist sexual
offenders.” Id. The Court noted:
[The defendant] first presents a body of research indicating
that adult sexual offender recidivism rates have been
improperly exaggerated, including through citations by this
Court and the United States Supreme Court. As an example,
he references the Courts’ repeated declaration that sexual
offenders have a “frightening and high” risk of recidivism,
which in turn provided support for upholding various
iterations of sexual offender registration systems. [The
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Defendant’s] Brief at 17 (citing [Smith v. Doe, 538 U.S. 84,
103 (2003); see also Commonwealth v. Lee, 935 A.2d 865
882 (Pa. 2007). The defendant] claims that this oft-quoted
language derives not from rigorous scientific evidence but
from an unsupported claim in “a 1988 National Institute of
Corrections training manual, which in turn cited a 1986
Psychology Today article written for a lay audience.” [The
Defendant’s] Brief at 17 (citing Ira Ellman and Tara Ellman,
“Frightening and High”: The Supreme Court's Crucial Mistake
About Sex Crime Statistics, 30 Const. Comment. 495
(2015)). He cites substantial recent evidence undermining
this claim.
[The defendant] additionally presents research indicating
that [] tier-based registration systems increase, rather than
decrease, danger to the public because the reporting systems
stigmatize the offender and their families and remove them
from support systems. He claims that research reveals that
the most effective systems for identifying recidivism are
those that utilize empirically derived assessment tools based
on “identified risk factors that correlate well with observed
recidivism levels,” in contrast to the use of tier systems based
upon the underlying criminal offense, which fail to take into
account individual risk factors. [The Defendant’s] Brief at 57.
Id. at 584-585 (some citations omitted).
However, the Supreme Court held that the record was insufficiently
developed and did not support a conclusion that the defendant “undermined
the validity of the legislative findings supporting Revised Subchapter H's
registration and notification provisions.” Id. at 585. The Supreme Court thus
remanded the case to the trial court, so as “to allow the parties to address
whether a consensus has developed to call into question the relevant
legislative policy decisions impacting offenders’ constitutional rights.” Id. In
particular, the Court held:
the evidence of record does not demonstrate a consensus of
scientific evidence as was present to find a presumption not
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universally true in [In re J.B., 107 A.3d 1, 17-19 (Pa. 2014)],
nor the “clearest proof” needed to overturn the General
Assembly's statements that the provisions are not punitive,
which we have noted “requires more than merely showing
disagreement among relevant authorities,” Lee, 935 A.2d at
885. We hesitate to find these standards met by the
stipulated admission of three experts’ affidavits, without an
opportunity to weigh this evidence against contrary evidence,
if any exists.
...
As is apparent from the trial court findings, the evidence
presented by [the defendant] provides a colorable argument
to debunk the settled view of sexual offender recidivation
rates and the effectiveness of tier-based sexual offender
registration systems underlying the General Assembly's
findings as well as various decisions of this Court and the
United States Supreme Court. Nevertheless, as the trial
court did not have the benefit of the opposing science, if any,
the evidence currently in the record does not provide a
sufficient basis to overturn the legislative determination.
Accordingly, we conclude that the proper remedy is to
remand to the trial court to provide both parties an
opportunity to develop arguments and present additional
evidence and to allow the trial court to weigh that evidence
in determining whether [the defendant] has refuted the
relevant legislative findings supporting the challenged
registration and notification provisions of Revised Subchapter
H.
Id. at 594-596 (footnote omitted).
In the case at bar, Appellant faults the Torsilieri Court for remanding
the case. According to Appellant, the remand order was “utterly unnecessary
. . . to resolve issues that could have been simply and efficiently resolved by
legal analysis alone.” Appellant’s Brief at 11. Indeed, although Appellant
raised his constitutional claims in a post-sentence motion and the trial court
held a hearing on the motion, Appellant did not request that the post-sentence
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motion hearing be transcribed and, on appeal, Appellant claims that his
constitutional claims may be decided as a matter of law. See id. at 11-12.
Torsilieri is on all fours with the case at bar and, in accordance with
Torsilieri, Appellant’s claim on appeal fails.
As explained above, in Torsilieri, the defendant was convicted of
aggravated indecent assault and was required to register as a sex offender for
life, under Revised Subchapter H of SORNA. Further, the defendant in
Torsilieri was “not designated an SVP.” Torsilieri, 232 A.3d at 572 and 572
n.2. Here, Appellant was convicted of indecent assault and was required to
register as a sex offender for 15 years, under Revised Subchapter H; as in
Torsilieri, Appellant was also “not designated an SVP.”
Moreover, Appellant’s substantive claims are identical to those raised in
Torsilieri. Specifically, Appellant claims that Revised Subchapter H’s
registration requirements “violate[] Pennsylvania’s due process protections
through the unconstitutional use of an irrebuttable presumption” and “are
punitive in nature [so] that they must comply with all constitutional and
statutory protections applicable to sentencing.” Appellant’s Brief at 11-12;
see also Torsilieri, 232 A.3d at 585-588 (analyzing the trial court’s
conclusion that “Revised Subchapter H violate[s] Pennsylvania's due process
protection through the unconstitutional utilization of an irrebuttable
presumption”) and 588-594 (analyzing the trial court’s conclusion that
Revised Subchapter H's registration and notification provisions are
unconstitutional, as they are punitive).
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As explained above, in Torsilieri, the Supreme Court held that the
record was insufficient to allow for a determination of unconstitutionality, as:
“the evidence of record does not demonstrate a consensus of scientific
evidence as was present to find a presumption not universally true in J.B.,
nor the ‘clearest proof’ needed to overturn the General Assembly's statements
that the provisions are not punitive, which we have noted ‘requires more than
merely showing disagreement among relevant authorities.’” Torsilieri, 232
A.3d at 594 (citations omitted). The Supreme Court thus “remand[ed the
case] to the trial court to provide both parties an opportunity to develop
arguments and present additional evidence and to allow the trial court to
weigh that evidence in determining whether [the defendant] has refuted the
relevant legislative findings supporting the challenged registration and
notification provisions of Revised Subchapter H.” Id. at 596. In the case at
bar, however, Appellant claims that the Torsilieri Court erred when it
remanded the case to the trial court and that we should simply decide his
constitutional claims as a matter of law. Appellant’s Brief at 11-12.
We will not venture beyond our Supreme Court’s holding in Torsilieri.
In Torsilieri, the Supreme Court concluded that the defendant’s scientific
evidence “presented a colorable argument that the General Assembly’s factual
presumptions have been undermined by recent scientific studies” – and, even
though the Commonwealth did not present any contrary evidence during the
post-sentence motion hearing – the Supreme Court still concluded that “the
evidence of record does not demonstrate a consensus of scientific evidence as
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was present to find a presumption not universally true in J.B., nor the ‘clearest
proof’ needed to overturn the General Assembly's statements that the
provisions are not punitive, which we have noted ‘requires more than merely
showing disagreement among relevant authorities.’” Id. at 594 (citations
omitted). In the case at bar, Appellant simply asks that we hold Revised
Subchapter H’s registration provisions unconstitutional as a matter of law.
Given that our Supreme Court, in Torsilieri, refused to hold Revised
Subchapter H unconstitutional despite uncontradicted evidence presented by
the defendant, we too refuse to hold the statutes unconstitutional where
Appellant has presented no evidence, whatsoever, to “demonstrate a
consensus of scientific evidence as was present to find a presumption not
universally true in J.B., nor the ‘clearest proof’ needed to overturn the General
Assembly's statements that the provisions are not punitive.” See id. at 594
(citations omitted). Appellant’s first numbered claim on appeal thus fails.
Next, Appellant claims that his “own case is proof that the irrebuttable
presumption on which SORNA’s registration[] requirements depend is false.”
According to Appellant, since he was not designated an SVP, “it cannot be
universally true that all sex-offenders are ‘likely to engage in predatory
sexually violent offenses.’” Appellant’s Brief at 36-37.
Appellant’s claim fails. In Torsilieri, the defendant was also “not
designated an SVP” and the Supreme Court still concluded that the defendant
did not “demonstrate a consensus of scientific evidence as was present to find
a presumption not universally true in J.B., nor the ‘clearest proof’ needed to
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overturn the General Assembly's statements that the provisions are not
punitive.” Torsilieri, 232 A.3d at 594. Again, in the case at bar, Appellant
invites us to go beyond Torsilieri’s holding and conclude that the registration
statutes are, as a matter of law, unconstitutional on their face. We decline
Appellant’s invitation. Torsilieri binds this Court and Appellant’s claim fails,
as Appellant unsupported challenge does not “demonstrate a consensus of
scientific evidence as was present to find a presumption not universally true
in J.B., nor the ‘clearest proof’ needed to overturn the General Assembly's
statements that the provisions are not punitive.” See Torsilieri, 232 A.3d at
594.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/27/2022
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