J-S45036-23
2024 PA Super 1
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FRANCISCO BUENO :
:
Appellant : No. 130 MDA 2023
Appeal from the Judgment of Sentence Entered September 12, 2022
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0003790-2020
BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED: JANUARY 3, 2024
Appellant, Francisco Bueno, appeals from the judgment of sentence
entered in the Court of Common Pleas of Berks County following his conviction
at a bench trial on the charges of statutory sexual assault (four to eight years
older) and indecent assault of a person less than sixteen years old. 1 After a
careful review, we affirm.
The relevant facts and procedural history are as follows: On January 7,
2021, the Commonwealth filed an Information charging Appellant with the
crimes indicated supra. On January 31, 2022, Appellant, who was represented
by court-appointed counsel, proceeded to a bench trial. At the trial, the
Commonwealth proved that, between September 12, 2020, and September
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3122.1(a)(1) and 3126(a)(8), respectively.
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13, 2020, the victim, who was born in April of 2007, snuck out of her home
and went to Appellant’s home in Reading, Pennsylvania. N.T., 1/31/22, at 5-
11, 15-16, 30. Appellant was born in September of 2001. Id. at 25. While
the victim was at Appellant’s house, he put his hands on and penis inside of
her vagina. Id. at 11-12. Appellant and the victim are not married. Id. at
14.
At the conclusion of the bench trial, the trial court convicted Appellant
of the offenses indicated supra, and on September 12, 2022, Appellant
proceeded to a sentencing hearing. The trial court imposed an aggregate of
five years’ probation. The Sexual Offender Assessment Board (“SOAB”)
determined Appellant is not a sexually violent predator. However, Appellant
was designated a Tier II offender and ordered to register as a sex offender for
25 years under Revised Subchapter H of the Sexual Offender Registration and
Notification Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.10-9799.42.
On September 20, 2022, Appellant filed a timely, counseled post-
sentence motion wherein he, inter alia, challenged the application of SORNA.
Specifically, he averred Revised Subchapter H created an unconstitutional
irrebuttable presumption implicating his right to reputation protected by the
Pennsylvania Constitution, the provisions of SORNA are excessively punitive
under the United States and Pennsylvania Constitutions, and the provisions of
SORNA are unconstitutionally overbroad since the trial court’s authority to
impose an individualized sentence is removed. Following a November 2, 2022,
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evidentiary hearing on the post-sentence motion, by order entered on
December 20, 2022, the trial court denied Appellant’s post-sentence motion.
This timely, counseled appeal followed, and all Pa.R.A.P. 1925 requirements
have been met.
On appeal, Appellant sets forth the following issues in his “Statement of
Questions Involved” (verbatim):
1. Whether the Trial Court erred when it found that the provisions
of the Sexual Offender Registration and Notification Act
(“SORNA”) are applicable to the Appellant as they are based on
an unconstitutional irrebuttable presumption?
2. Whether the Trial Court erred when it found the provisions of
SORNA are not unconstitutionally punitive, overbroad, and a
denial of Due Process?
Appellant’s Brief at 5 (suggested answers and bold omitted).
Appellant’s issues are intertwined. Specifically, Appellant contends
Revised Subchapter H is unconstitutional because it (a) creates an irrebuttable
presumption of dangerousness in violation of the right to reputation protected
by the Pennsylvania Constitution, (b) constitutes excessive punishment under
the United States and Pennsylvania Constitutions, and (c) prevents trial courts
from imposing individualized sentences such that it is unconstitutionally
overbroad. Appellant suggests that, for these reasons, this Court must vacate
his registration requirements.
Initially, we note:
When an appellant challenges the constitutionality of a statute,
the appellant presents this Court with a question of
law. See Commonwealth v. Atwell, 785 A.2d 123, 125
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(Pa.Super. 2001) (citation omitted). Our consideration of
questions of law is plenary. See [id.] (citation omitted). A
statute is presumed to be constitutional and will not be declared
unconstitutional unless it clearly, palpably, and plainly violates the
constitution. See Commonwealth v. Etheredge, 794 A.2d 391,
396 (Pa.Super. 2002) (citations omitted). Thus, the party
challenging the constitutionality of a statute has a heavy burden
of persuasion. See [id.] (citation omitted).
Commonwealth v. Howe, 842 A.2d 436, 441 (Pa.Super. 2004).
Recently, in explaining the development of the law regarding claims
such as those raised by Appellant, this Court has set forth the following:
In [Commonwealth v.] Torsilieri, [659 Pa. 359,
232 A.3d
567 (2020)], the Commonwealth appealed from the order entered
in the Chester County Court of Common Pleas declaring
Subchapter H of SORNA II unconstitutional as violative of several
provisions of the United States and Pennsylvania Constitutions.
Specifically, the trial court found that Subchapter H violated due
process through the use of an irrebuttable presumption; that
Revised Subchapter H’s notification and registration requirements
were punitive in nature; and that Revised Subchapter H violated
the requirements of Apprendi and Alleyne,[2] imposed sentences
in excess of the statutory maximum, constituted cruel and unusual
punishment, and violated the separation of powers doctrines by
preventing trial courts from imposing an individualized sentence.
Torsilieri, supra, at 383, 232 A.3d at 582.
Based on the evidence relied upon by the trial court, [3] our
Supreme Court decided that the appellee had posed colorable
constitutional challenges to Revised Subchapter H’s registration
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2 Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United
States,
570 U.S. 99 (2013).
3 In Torsilieri, the appellee introduced documents and affidavits of three
experts, who indicated that sex offenders generally have low recidivism rates
and questioned the effectiveness of sex offender registration systems.
Although the Commonwealth stipulated to the content of the exhibits offered
by the appellee, the Commonwealth did not stipulate to the validity or
relevance of the exhibits.
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and notification provisions based on his asserted refutation of two
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. at 387, 232
A.3d at 584.
In considering these claims, the Court stated it was “unable
to conclude based upon the record currently before [it] whether
[the a]ppellee has sufficiently undermined the validity of the
legislative findings supporting Revised Subchapter H’s registration
and notification provisions, especially in light of the contradictory
scientific evidence cited by the Commonwealth during this appeal
which may refute [the a]ppellee’s experts.” Id. at 388, 232 A.3d
at 585.[4] The Court went on to state that “[i]t is not the role of
an appellate court to determine the validity of the referenced
studies based on mere citations rather than allowing the
opportunity for the truths to develop through a hearing on the
merits of the evidence. Accordingly, a remand is appropriate to
allow the parties to address whether a consensus has developed
to call into question the relevant legislative policy decisions
impacting offenders’ constitutional rights.” Id. at 388, 232 A.3d
at 585 (internal footnote omitted).
In framing the remand, the Court then discussed the extent
to which each of the trial court’s conclusions of unconstitutionality
rested on its crediting of the appellee’s scientific evidence. The
Court noted that the trial court’s analysis of each of the three
prongs of the irrebuttable presumption doctrine relied heavily
upon the scientific evidence presented by the appellee. Id. at 392,
232 A.3d at 587. Thus, the Court concluded that remand was
necessary “to allow the parties to present additional argument and
evidence to address whether a scientific consensus has developed
to overturn the legislative determinations in regard to adult sexual
offenders’ recidivation rates and the effectiveness of a tier-based
registration and notification system as they relate to the prongs
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4 Specifically, in Torsilieri, the Commonwealth indicated on appeal that there
was a conflict among social scientists regarding recidivism rates of sexual
offenders, and the Commonwealth introduced a then-recent study, which
refuted the conclusions of the appellee’s experts. Id. at 384-85, 232 A.3d at
583.
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of the irrebuttable presumption doctrine.” Id. at 392, 232 A.3d at
587-88.
Regarding challenges based upon the trial court’s conclusion
that Revised Subchapter H’s registration and notification
provisions are punitive, the Court again “evaluate[d] the degree
to which the trial court’s conclusions [were] based upon the
scientific evidence presented by [the a]ppellee.” Id. at 393, 232
A.3d at 588. The Court discussed the Mendoza-Martinez
factors[5] relevant to whether the effect of a statute is punitive
(factors 3 and 5 were not relevant to the analysis), and noted that
even where the trial court’s analysis of the relevant factors did not
“overtly rely on [the a]ppellee’s scientific evidence[,]...in
balancing all of the factors, the court may have weighed [factor
1] more heavily as punitive because of the court’s acceptance of
[the a]ppellee’s expert evidence.” Id. at 396, 232 A.3d at 590.
Thus, the Court said it was “appropriate for the trial court to
reevaluate factor 1 after a full hearing on the scientific evidence.”
Id. See also id. at 397-98, 232 A.3d at 591 (recognizing that
similar to factor 1, the trial court’s analysis of factor 2 did not
specifically draw upon the scientific evidence presented by
appellee; nevertheless, “we conclude that consideration of the
scientific evidence presented on remand may alter the trial court’s
weighing of this factor”); id. at 399, 232 A.3d at 592 (regarding
factor 4, concluding “that the court’s analysis of this factor also
favors remanding for further consideration in light of any
additional scientific evidence”); id. at 401, 232 A.3d at 593
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5 In Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), the
United States Supreme Court set forth a seven-factor test as a framework for
determining whether a statute is so punitive as to negate the legislature’s
intention to identify a scheme as civil or regulatory. Specifically, the seven-factor test is as follows:
whether the sanction involves an affirmative disability or restraint,
whether it has historically been regarded as a punishment,
whether it comes into play only on a finding of scienter, whether
its operation will promote the traditional aims of punishment—
retribution and deterrence, whether the behavior to which it
applies is already a crime, whether an alternative purpose to
which it may rationally be connected is assignable for it, and
whether it appears excessive in relation to the alternative purpose
assigned are all relevant to the inquiry[.]
Id. (internal footnotes omitted).
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(noting that “it cannot be disputed that the trial court’s evaluation
of the [a]ppellee’s experts’ evidence affected its view of the case.
Indeed, it expressly references its evaluation of [factor 6] in its
consideration of Factor 7. Thus, the trial court’s analysis of this
factor also counsels in favor of a remand to develop the record”);
id. at 402, 232 A.3d at 593 (acknowledging that trial court’s
evaluation of factor 7 was also tied to strength of the appellee’s
scientific evidence, which may require reevaluation following
presentation of any additional scientific evidence on remand).
Thus, the Court concluded that the trial court’s “labeling of
Revised Subchapter H as punitive was impacted by its assessment
of [the a]ppellee’s expert evidence such that reevaluation of the
balancing of the seven Mendoza-Martinez factors is appropriate
following presentation of additional scientific evidence on
remand.” Id. at 403, 232 A.3d at 594.
As “[t]he trial court’s conclusion that Revised Subchapter H
is punitive inevitably resulted in the court’s determination that the
registration requirements were part of [the a]ppellee’s criminal
sentence, and thus, subject to the various constitutional and
statutory protections[,]” the Court held that the trial court’s other
holdings that Revised Subchapter H violated Apprendi/Alleyne,
constituted an illegal sentence, violated constitutional provisions
related to cruel and unusual punishment, and violated the
separation of powers doctrines, all which flowed from the court’s
determination that Revised Subchapter H is punitive, similarly
must be reevaluated following remand.[6] Id.
Our review of the Court’s analysis in Torsilieri makes clear
the importance of the scientific evidence as it pertained to each of
the constitutional issues raised by the appellee. In fact, the Court
emphasized in its conclusion “that all cases are evaluated on the
record created in the individual case.” Id. at 405, 232 A.3d at
595-96. Thus, the Court declined to address any of the
constitutional issues raised by the appellee, in the absence of a
full evidentiary hearing to resolve those claims.
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6 Notably, upon remand, the trial court conducted an evidentiary hearing and
again held that Revised Subchapter H was unconstitutional. The
Commonwealth appealed to our Supreme Court, and the matter is still
pending. See 97 MAP 2022.
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Since Torsilieri, this Court has remanded for a full
evidentiary hearing to resolve similar constitutional claims, where
the parties did not have an opportunity for a hearing before the
trial court. See, e.g., Commonwealth v. Mickley, 240 A.3d 957
(Pa.Super. 2020) (vacating order denying motion to bar
registration requirements and remanding for evidentiary hearing
where court did not permit defense counsel to offer evidence at
hearing, despite defense counsel’s attempt to do so);
Commonwealth v. Snyder, No. 2060 EDA 2019, 2023 WL
315608 (Pa.Super. filed Jan 19, 2023) (unpublished
memorandum)[7] (addressing, upon remand from Supreme Court,
claims identical to those addressed in Torsilieri; because [the]
appellant had not offered any specific scientific evidence or
learned testimony in support of his position, this Court remanded
to trial court for evidentiary hearing and opportunity for [the]
appellant to supplement his arguments with scientific evidence);
Commonwealth v. Chittester, Nos. 256 WDA 2020 and 257
WDA 2020, 2023 WL 34009 (Pa.Super. filed Jan 4, 2023)
(unpublished memorandum) (remanding for [the] appellant to
have opportunity to file post-sentence motion nunc pro tunc
asserting his constitutional challenges to Revised Subchapter H,
after which trial court shall hold hearing to provide both parties
opportunity to develop arguments and present evidence so that
court may then weigh evidence in determining whether [the]
appellant has refuted relevant legislative findings supporting
challenged registration and notification provisions of Revised
Subchapter H); Commonwealth v. Escabal, No. 1928 EDA
2021, 2022 WL 6643947 (Pa.Super. filed Oct. 11, 2022)
(unpublished memorandum) (rejecting [the] appellant’s claims to
extent he maintains we may invalidate Revised Subchapter H as
matter of law and without further factual development before trial
court; vacating and remanding for further proceedings at which
parties can present evidence for and against relevant legislative
determinations and challenges at issue).
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7 Pursuant to Pa.R.A.P. 126(b), unpublished decisions of the Superior Court
filed after May 1, 2019, may be cited for their persuasive value.
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Commonwealth v. Villanueva-Pabon, ___ A.3d ___, 2023 PA Super 222,
2023 WL 7137301 at *4-6 (Pa.Super. Oct. 31, 2023) (footnotes omitted)
(footnotes added) (emphasis in original).
After setting forth the applicable law, this Court in Villanueva-Pabon
noted that the procedural history of the case was distinguishable from those
in cases such as Mickley, supra, Snyder, supra, Chittester, supra, and
Escabal, supra, where there was no evidentiary hearing in the trial court
regarding the respective defendants’ constitutional claims. This Court also
found the procedural history in Villanueva-Pabon to be distinguishable from
that of Torsilieri, supra, where the Commonwealth stipulated to the content
of the appellee’s proffered exhibits.
Specifically, in Villanueva-Pabon, this Court noted the trial court held
a hearing on the appellant’s post-sentence motion and gave the appellant an
opportunity to present evidence in support of his constitutional claims. After
reviewing the record and the appellant’s brief, we concluded that “[the]
appellant essentially presented no evidence to overcome the presumption of
Revised Subchapter H’s constitutionality.” See id. at *7 (citing
Commonwealth v. Manzano, 237 A.3d 1175 (Pa.Super. 2020) (holding the
appellant failed to satisfy his burden to prove that Revised Subchapter H
provisions applicable to him “clearly, palpably, and plainly” violated
constitution where the appellant produced no scientific evidence whatsoever
to support his claims that underlying legislative policy infringes on the
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appellant’s rights; but rather, the appellant simply relied on the trial court’s
initial decision in Torsilieri declaring statute as unconstitutional in attempt to
persuade the trial court in his case to reach same conclusion);
Commonwealth v. Outterbridge, No. 1175 MDA 2021, 2022 WL 2965808
(Pa.Super. filed July 27, 2022) (unpublished memorandum) (explaining that
the appellant raised his Subchapter H claims implicating irrebuttable
presumption argument before the trial court; however, he failed to present
any evidence of scientific studies to support his claim, and, instead, the
appellant asked us to resolve his Subchapter H claim as matter of law)).
Accordingly, in in Villanueva-Pabon, this Court affirmed the imposition of
the appellant’s registration requirements under SORNA.
In the case sub judice, in explaining the reasons it found no merit to
Appellant’s instant claims, the trial court indicated the following:
In this case, [Appellant] was convicted of committing
statutory sexual assault and indecent assault that occurred
between September 12, 2020, and September 13, 2020. Based
on those offense dates, [Appellant] was subject to SORNA’s
Revised Subchapter H, which applies to individuals whose offenses
occurred on or after December 20, 2012. See 42 Pa.C.S.A. §§
9799.10-9799.42. He was not found to be a sexually violent
predator. [Appellant] challenged the constitutionality of SORNA
within his post-sentence motion filed on September 20, 2022. On
November 10, 2022, a hearing was held to address [Appellant’s]
claims regarding the application of SORNA. To the best of the
[trial] court’s recollection, no scientific evidence was presented at
that hearing. Furthermore, [Appellant] has not requested a
transcript from that hearing. [Appellant] has failed to present any
evidence to support his argument that SORNA’s Revised
Subchapter H is unconstitutional. Therefore,…[Appellant’s] claim
must fail.
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Trial Court Opinion, filed 4/11/23, at 5.
We have reviewed the certified record. While Appellant requested the
stenographer transcribe the notes of testimony from his bench trial, which
was held on January 31, 2022, he did not request the notes of testimony from
either his sentencing hearing, which was held on September 12, 2022, or the
post-sentence evidentiary hearing, which was held on November 2, 2022.
Consequently, the notes of testimony were neither transcribed nor included in
the certified record provided to this Court.
Further, we note Appellant does not challenge the trial court’s indication
that, although given the opportunity to do so at the post-sentence evidentiary
hearing, Appellant presented no scientific evidence in support of his claims,
and, thus, Appellant did not overcome the presumption of Revised Subchapter
H’s constitutionality. Additionally, we note Appellant has not proffered any
scientific evidence on appeal in support of his claims.
Rather, on appeal, Appellant suggests that we resolve his Subchapter H
claims as a matter of law. However, as this Court noted in Outterbridge,
“without any evidence of scientific studies, Appellant cannot make ‘a colorable
argument that the General Assembly’s factual presumptions have been
undermined by recent scientific studies.’” Outterbridge, 2022 WL 2965808,
at *4 (citation omitted).
Further, to the extent Appellant argues his own case is proof that the
irrebuttable presumption on which SORNA’s registration requirements
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depends is false since he was designated as a non-SVP offender, and, thus,
he is not likely to engage in predatory sexual violent offenses such that
requiring him to register as a sex-offender is unconstitutional, we find no relief
is due.
In Commonwealth v. Wolf, 276 A.3d 805 (Pa.Super. 2022), this Court
addressed a claim similar to the one raised by Appellant and held:
The a]ppellant’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 [In re J.B. 630 Pa. 408,
107 A.3d 1 (2014)], nor the ‘clearest
proof’ needed to overturn the General Assembly’s statements that
the provisions are not punitive.” Torsilieri, 232 A.3d at 594.
Again, in the case at bar, [the a]ppellant 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
[the a]ppellant’s invitation. Torsilieri binds this Court and [the
a]ppellant’s claim fails, as [the appellant’s] 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.
Wolf, 275 A.3d at 813.
In the case sub judice, as in Wolf, Appellant’s irrebuttable presumption
and constitutionality claims are premised on the fact that he was not classified
as an SVP. However, as this Court noted in Wolf, Appellant’s non-SVP status
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does not establish that Subchapter H is unconstitutional. See id. See also
Outterbridge, supra.8
Accordingly, for all of the aforementioned reasons, we conclude
Appellant is not entitled to relief,9 and we affirm.
Affirmed.
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8 In Outterbridge, the appellant failed to ensure the post-sentence hearing
transcript was transcribed and provided to this Court. Moreover, similar to
the instant case, the appellant provided no evidence to this Court; but rather,
the appellant asked this Court to determine, as a matter of law, that Revised
Subchapter H was unconstitutional. Relying on Wolf, we found no merit to
the appellant’s claim in Outterbridge.
9 In Commonwealth v. Thorne, ___ Pa. ___, 276 A.3d 1192 (2022), our
Supreme Court held that our “legality of sentencing jurisprudence—i.e., that
challenges implicating the legality of a sentence cannot be waived—applies
equally to constitutional challenges to Revised Subchapter H of SORNA.” See
Thorne, supra,
276 A.3d at 1196. The Thorne Court explained its holding
“would have no meaning if individuals seeking to challenge Revised
Subchapter H on constitutional grounds were required to present evidence in
support thereof during [the] underlying criminal proceedings in order to
preserve the issue.”
Id. at 1198 n.13.
In the case sub judice, we do not find Appellant waived his Subchapter
H claims nor do we conclude he failed to adequately preserve his issues.
Rather, we conclude that because Appellant did not present any evidence to
establish his claims, either before the trial court or on appeal, he has failed to
meet his burden to prove Subchapter H is unconstitutional. See
Outterbridge, supra.
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Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 01/03/2024
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