J-S36011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEVIN J. GETCHIUS                          :
                                               :
                       Appellant               :   No. 71 MDA 2019

            Appeal from the PCRA Order Entered December 21, 2018
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0002492-2013


BEFORE:      PANELLA, P.J., SHOGAN, J., and PELLEGRINI, J.*

MEMORANDUM BY PANELLA, P.J.:                              FILED JUNE 02, 2020

        Appellant, Kevin J. Getchius, appeals from the order entered in the

Lancaster County Court of Common Pleas denying his petition filed pursuant

to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. In his

petition, Appellant alleges trial counsel’s ineffectiveness. On appeal, Appellant

also challenges the PCRA court’s assessment that he is subject to lifetime

registration requirements under Megan’s Law II, 42 Pa.C.S.A. §§ 9791-

9799.7. We affirm in part and, based on our Supreme Court’s recent decision

in Commonwealth v. Butler (“Butler II”), 25 WAP 2018, __ A.3d __, 2020

WL 1466299 (Pa., filed March 26, 2020), reverse in part.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S36011-19


      Appellant was arrested after his ex-girlfriend’s daughter, K.H., revealed

to her grandmother that Appellant had sexually abused her a few years earlier.

K.H. was four or five years old at the time of the abuse, which she alleged

occurred during times Appellant babysat her while her mother was at work.

      A jury convicted Appellant of one count each of rape of a child,

involuntary deviate sexual intercourse with a child, unlawful contact with a

minor, dissemination of explicit sexual materials, and corruption of a minor,

and two counts of indecent assault of a child. The trial court sentenced

Appellant to an aggregate 23–46 years’ incarceration on August 6, 2014.

Following a hearing on that same date, the court determined Appellant to be

a sexually violent predator (“SVP”) and therefore subject to lifetime

registration requirements under then-effective Megan’s Law III, 42 Pa. C.S.A.

§§ 9791-9799.9.

      Appellant timely appealed to this Court, which vacated his judgment of

sentence and remanded for a new sentencing hearing due to the court’s

imposition of a mandatory minimum sentence in violation of Alleyne v.

United States, 570 U.S. 99 (2013). The sentencing court again imposed an

aggregate 23–46 years’ incarceration on Appellant and also required him to

register for life as an SVP under the registration legislation in effect at that


                                     -2-
J-S36011-19


time, the Sexual Offenders Registration and Notification Act (“SORNA I”), 42

Pa.C.S.A. §§ 9799.10-9799.41.1 Appellant did not appeal from that judgment

of sentence.

       Appellant thereafter filed a pro se PCRA petition. The PCRA court

appointed counsel, who filed an amended petition alleging trial counsel’s

ineffectiveness and arguing Appellant should not be subject to an SVP

designation or SORNA I registration requirements. The court denied

Appellant’s ineffectiveness claims, but agreed with Appellant that his

classification as an SVP was invalid following this Court’s decision in

Commonwealth v. Butler (“Butler I”), 173 A.3d 1212 (Pa. Super. 2017),

and that the lifetime registration requirements that had been imposed on him

under SORNA I were unconstitutional following Commonwealth v. Muniz,

164 A.3d 1189 (Pa. 2017).

       The court, however, disagreed with the Commonwealth that Appellant

was therefore subject to the registration requirements of “Act 10” and “Act




____________________________________________


1 SORNA I specifically provided for the expiration of prior registration
requirements, i.e. Megan’s Law III, as of its effective date of December 20,
2012. See Commonwealth v. Wood, 208 A.3d 131, 134 (Pa. Super. 2019).



                                           -3-
J-S36011-19


29” of 2018 (collectively “SORNA II”), 42 Pa. C.S.A. §§ 9799.10-9799.75.2

Instead, the court determined that Appellant was subject to lifetime

registration requirements under Megan’s Law II. Appellant timely filed a notice

of appeal, and complied with the dictates of Pa.R.A.P. 1925(b). This matter is

now properly before us.

       Before we are able to address the merits of Appellant’s issues, we must

determine whether his petition was timely filed.

       A PCRA petition is timely if it is filed within one year of the date the

petitioner’s judgment of sentence becomes final. See 42 Pa.C.S.A. §

9545(b)(1). “A judgment becomes final at the conclusion of direct review,

including discretionary review in the Supreme Court of the United States and

the Supreme Court of Pennsylvania, or at the expiration of time for seeking

the review.” Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa. Super.

2014) (citation omitted).

       Here, a previous panel of this Court vacated Appellant’s judgment of

sentence and remanded for a new sentencing hearing. Following that remand,


____________________________________________


2 The Pennsylvania General Assembly enacted Act of Feb. 21, 2018, P.L. 27,
No. 10 §§ 1-20, immediately effective (“Act 10”), and then amended Act 10
and reenacted it as Act of June 12, 2018, P.L. 140, No. 29 §§ 1-23,
immediately effective (“Act 29”).


                                           -4-
J-S36011-19


the sentencing court imposed a term of 23–46 years’ incarceration. Appellant

did not appeal following the imposition of the new sentence. As a result, his

judgment of sentence became final on November 22, 2015, thirty days after

the court imposed Appellant’s new sentence, when his time for filing a notice

of appeal to this Court expired. See Pa.R.A.P. 903(a). Appellant’s PCRA

petition, filed on November 4, 2016, is therefore timely.

      We proceed to the merits of Appellant’s petition. “Our standard of review

for issues arising from the denial of PCRA relief is well-settled. We must

determine whether the PCRA court’s ruling is supported by the record and free

of legal error.” Commonwealth v. Presley, 193 A.3d 436, 442 (Pa. Super.

2018) (citation omitted). In doing so, we read the record in the light most

favorable to the prevailing party. See Commonwealth v. Ford, 44 A.3d

1190, 1194 (Pa. Super. 2012). If this review reveals support for the PCRA

court’s credibility determinations and other factual findings, we may not

disturb them. See Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014). We, however, afford no deference to the PCRA court’s legal

conclusions. See id.

      In his first two issues, Appellant argues trial counsel rendered ineffective

assistance. We presume counsel’s effectiveness and Appellant bears the


                                      -5-
J-S36011-19


burden of proving otherwise. See Commonwealth v. Brown, 161 A.3d 960,

965 (Pa. Super. 2017). “In order for Appellant to prevail on a claim of

ineffective assistance of counsel, he must show, by a preponderance of the

evidence, ineffective assistance of counsel which so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place.” Presley, 193 A.3d at 442 (citation omitted).

      To establish ineffectiveness of counsel, he must plead and prove: his

underlying legal claim has arguable merit; counsel’s actions lacked any

reasonable basis; and counsel’s actions prejudiced him. See Commonwealth

v. Spotz, 18 A.3d 244, 260 (Pa. 2011). Failure to satisfy any prong of the

ineffectiveness test requires dismissal of the claim. See Commonwealth v.

O’Bidos, 849 A.2d 243, 249 (Pa. Super. 2004). “Arguable merit exists when

the factual statements are accurate and could establish cause for relief.

Whether the facts rise to the level of arguable merit is a legal determination.”

Commonwealth v. Barnett, 121 A.3d 534, 540 (Pa. Super. 2015) (citations

and internal quotation marks omitted). Appellant must also establish that he

suffered prejudice, “that is, that counsel’s ineffectiveness was of such

magnitude that it could have reasonably had an adverse effect on the outcome




                                     -6-
J-S36011-19


of the proceedings.” Commonwealth v. Spotz, 84 A.3d 294, 315 (Pa. 2014)

(citation and quotation marks omitted).

      Appellant’s first claim of ineffectiveness is based upon his belief that the

Commonwealth failed to specify when his assault of K.H. occurred. Appellant

indicates that the Commonwealth gave a range of dates, from May 1, 2010 to

May 1, 2011, on which it alleged the assaults may have occurred. According

to Appellant, he was unable to investigate possible alibis or other defenses

due to the long timespan, which resulted in a denial of due process of law.

Further, Appellant says that while the Commonwealth claimed the acts

happened more than once in that span, he objects to any label of his actions

as a continuous course of conduct that would justify the lengthy range. In

Appellant’s view, counsel’s failure to object or seek a dismissal of the charges

based on this length of time at issue was ineffective assistance resulting in

manifest prejudice to Appellant’s case. We disagree, as this claim has no

arguable merit.

      It is the duty of the prosecution to fix the date when an alleged
      offense occurred with reasonable certainty…. The purpose of so
      advising a defendant of the date when an offense is alleged to
      have been committed is to provide him with sufficient notice to
      meet the charges and prepare a defense.




                                      -7-
J-S36011-19


Commonwealth v. Brooks, 7 A.3d 852, 857-858 (Pa. Super. 2010)

(citations and internal quotations omitted).

      However, this Court has previously noted that “due process is not

reducible to a mathematical formula[.]” Commonwealth v. Riggle, 119 A.3d

1058, 1069-1070 (Pa. Super. 2015) (citation omitted). Instead, the

considerations “vary with the nature of the crime and the age and condition

of the victim, balanced against the rights of the accused.” Commonwealth

v. Benner, 147 A.3d 915, 920 (Pa. Super. 2016) (citation omitted).

      Moreover, the Commonwealth is to be afforded “broad latitude when

attempting to fix the date of offenses which involve a continuous course of

criminal conduct.” Id. at 921. (citation omitted). In cases with young sexual

abuse victims, the Court has found that due process considerations are

satisfied where the victim “can at least fix the times when an ongoing course

of molestation commenced and when it ceased.” Commonwealth v. G.D.M.,

Sr., 926 A.2d 984, 990 (Pa. Super. 2007).

      Here, K.H. testified at trial that she knew Appellant because he lived

with her family in Lancaster. See N.T. Trial, 4/8/14, at 68. K.H. explained that

she was four or five years old at the time of the relevant incidents. See id. at

71. K.H. repeatedly stated Appellant abused her more than once during the


                                     -8-
J-S36011-19


time she stayed in the Lancaster apartment. See id. at 71, 79. K.H. was able

to describe the apartment and the room where Appellant abused her. See id.

at 79-80, 84. K.H. described exactly what the abuse entailed, including forced

oral and vaginal contact. See id. at 68-71. K.H. also affirmed that her mother

was at work each time Appellant abused K.H. See id. at 72.

      The Commonwealth then supplied testimony from K.H.’s mother, who

confirmed that she and K.H. began living with Appellant in Lancaster around

May of 2010. See id. at 95. K.H.’s mother stated she and K.H. moved out of

the apartment in October of 2010, but that they often came back to visit and

stay overnight with Appellant until Appellant moved out of the apartment in

2011. See id. at 95-97. K.H.’s mother testified she worked while living in

Lancaster, and had often asked Appellant to pick up K.H. from daycare and

watch her at the apartment. See id. at 97.

      Here, the Commonwealth supplied a range of dates, between May 2010

and May 2011, when the abuse allegedly occurred. The Commonwealth

provided testimony from K.H. that the abuse happened repeatedly during that

time. K.H. was extremely young, only four or five years old at the time of the

abuse. K.H.’s specificity as to where and when the abuse occurred allowed the

Commonwealth to fix a date range for when it happened. Appellant has not


                                    -9-
J-S36011-19


established that he was deprived of due process because the nature of this

case rendered the Commonwealth unable to more precisely specify the timing

of his continuous course of conduct. As counsel cannot be deemed ineffective

for declining to pursue a meritless claim, Appellant is due no relief on this

issue.

         Appellant’s second ineffectiveness claim is based on his contention that

the nurse who examined K.H., Mary Twomey, exceeded the scope of her

expertise when she testified that K.H.’s normal colposcopic examination

results did not preclude the existence of sexual trauma. Appellant contends

only an expert physician would have been qualified to testify about the

significance of K.H.’s test results. Further, Appellant asserts Twomey’s

testimony was hearsay, as she cited peer-reviewed studies for the truth of the

matter asserted. He concludes trial counsel unreasonably failed to object to

Twomey’s qualification as an expert witness, and to her inadmissible

testimony. Once again, we conclude this claim fails for a lack of arguable

merit.

         The trial court has discretion in deciding to admit expert testimony, and

this Court will not reverse that decision absent an abuse of discretion. See

Commonwealth v. Huggins, 68 A.3d 962, 966 (Pa. Super. 2013). “An


                                       - 10 -
J-S36011-19


expert’s testimony is admissible when it is based on facts of record and will

not cause confusion or prejudice.” Id. (citation omitted). “[T]he standard for

qualifying an expert witness is a liberal one: the witness need only have a

reasonable pretension to specialized knowledge on a subject for which expert

testimony is admissible.” Commonwealth v. Doyen, 848 A.2d 1007, 1014

(citation omitted).

      A witness who is qualified as an expert by knowledge, skill,
      experience, training, or education may testify in the form of an
      opinion or otherwise if:

      (a) the expert’s scientific, technical, or other specialized
      knowledge is beyond that possessed by the average layperson;

      (b) the expert’s scientific, technical, or other specialized
      knowledge will help the trier of fact to understand the evidence or
      to determine a fact in issue; and

      (c) the expert’s methodology is generally accepted in the relevant
      field.



Pa.R.E. 702.

      This Court has recognized a hearsay exception where an expert witness

testifies about the opinion or data of other professionals, so long as the expert

also incorporates his own knowledge and judgment. See Nazarak v. Waite,

216 A.3d 1093, 1108 (Pa. Super. 2019).

      There is no question that if published material is authoritative and
      relied upon by experts in the field, although it is hearsay, an
      expert may rely upon it in forming his opinion; indeed, it would be

                                     - 11 -
J-S36011-19


      unreasonable to suppose that an expert's opinion would not in
      some way depend upon the body of works preceding it.
      Pennsylvania courts have thus permitted, subject to appropriate
      restraint by the trial court, limited identification of textual
      materials (and in some circumstances their contents) on direct
      examination to permit an expert witness to fairly explain the basis
      for his reasoning.

Aldridge v. Edmunds, 750 A.2d 292, 297 (Pa. 2000) (citations omitted).

      Finally, we note that “testimony in the form of an opinion or inference

otherwise admissible is not objectionable because it embraces an ultimate

issue to be decided by the trier of fact.” Pa.R.E. 704.

      At trial, the Commonwealth called Mary Twomey to testify. See N.T.

Trial, 4/8/14, at 128. Twomey stated she was a pediatric nurse practitioner

working at the Children’s Resource Center in Harrisburg. See id. She averred

that, in addition to her bachelor’s and master’s degrees in nursing, she also

completed an advanced course of training specifically for clinicians examining

children who have suffered from physical and sexual abuse. See id. at 129.

Twomey asserted she had worked in the Resource Center for ten years, and

had examined between 300–400 children each year. See id. at 130.

Appellant’s counsel declined to ask Twomey any questions, and did not object

to her qualification as an expert. See id.

      Twomey testified that K.H.’s examination was “healthy.” Id. at 134.

Twomey then clarified that though the results were normal, most child victims

                                     - 12 -
J-S36011-19


of sexual assault have healthy exam results, and such a result does not make

it less likely that the child was sexually assaulted. See id. at 135. Twomey

affirmed that, while it may seem logical that an abuse victim alleging

penetrative sexual contact would have an abnormal test result, such thinking

had been disregarded in the field since the year 2000. See id. Twomey began

to state that since 2000, peer-reviewed studies had changed the assessments

of experts before Appellant’s counsel objected. See id. at 136.

     At sidebar, counsel protested that he had not been given any

information about peer-reviewed studies in discovery. See id. The court held

that Twomey was entitled to explain how she reached her opinion about K.H.’s

examination, and overruled Appellant’s objection. See id. at 137. Twomey

continued, stating that research has shown it is uncommon for child victims

of sexual abuse to show signs of penetration when they are not examined

immediately after the sexual contact. See id. at 138. Twomey continued that

her own experience has borne out this research, and that she had not

expected to find any signs of abuse during K.H.’s examination. See id.

Twomey conceded that she could not form an opinion about whether K.H. was

abused based on the examination. See id.




                                   - 13 -
J-S36011-19


      Appellant offers nothing to support his derisive assertion that Twomey

was merely a “zealot” rather than a properly qualified expert. Appellant’s Brief,

at 20. Though Appellant asserts Twomey was unqualified to render an opinion

as to the significance of K.H.’s examination results, as she was not a physician,

he offers no reason why a nurse practitioner specializing in child abuse cases

would be unqualified to testify about what the results of a child abuse

examination meant.

      Twomey’s testimony that she had conducted approximately 3,000–

4,000 child sexual abuse examinations over her tenure at the Children’s

Resource Center, and had completed an advanced course of study specifically

pertaining to child sexual abuse, demonstrates a level of specialized

knowledge. Her testimony was presented to assist the jury in understanding

that a child’s “healthy” result following a sexual abuse examination does not

preclude a possibility the child has been assaulted. Moreover, Appellant does

not offer any argument that Twomey’s methodology was somehow flawed.

Rather, her testimony that the examination results were inconclusive clearly

favored Appellant’s defense, as he acknowledges in his brief. See Appellant’s

Brief at 18, n 4. Because the trial court acted well within its discretion by




                                     - 14 -
J-S36011-19


permitting Twomey to testify as an expert, we cannot conclude the PCRA court

erred in finding a lack of arguable merit.

      As for Appellant’s claim that Twomey’s brief reference to “peer-reviewed

studies” constituted hearsay, this argument is also meritless. In her

testimony, Twomey referred to studies showing that child sexual abuse victims

rarely show signs of having been abused when the examination occurs well

after the sexual contact. Twomey affirmed that she has found this to be true

in her own extensive experience conducting examinations of child abuse

victims. She explained for that reason, she did not anticipate that she would

find anything abnormal in K.H.’s exam since it took place well after the conduct

alleged. Twomey’s testimony was clearly of the type anticipated by the

hearsay exception allowing an expert witness to explain the basis for her

reasoning. Once again, we cannot conclude the PCRA court erred in rejecting

this claim.

      Appellant’s final claim is not an ineffectiveness claim. It involves the

legality of his sentence and more specifically, which legislation, if any, can

lawfully be relied upon to impose registration requirements on him as a

designated SVP. Appellant asserts that the PCRA court properly determined




                                     - 15 -
J-S36011-19


that subjecting him to SORNA II’s registration requirements would constitute

an ex post facto violation under Muniz.

     He argues, however, that the PCRA court erred by then concluding that

he was subject to lifetime registration requirements pursuant to Megan’s Law

II. According to Appellant, there are no registration requirements that can

legally be imposed on him. We disagree. Instead, we find that our Supreme

Court’s recent decision in Butler II compels the conclusion that Appellant is

subject to the registration requirements applicable to SVPs under SORNA II.

     Our review of the legality of Appellant’s sentence is de novo, and our

scope of review is plenary. See Muniz, 164 A.3d at 1195. In    Muniz,    the

Pennsylvania Supreme Court determined the retroactively amplified reporting

requirements of SORNA I, when applied to offenders who committed crimes

prior to SORNA I’s effectiveness date, constituted increased punishment in

violation of the ex post facto prohibitions in the United States and

Pennsylvania Constitutions. See id. at 1223. Shortly thereafter, a panel of

this Court in Butler I deemed SORNA’s SVP determination procedure

unconstitutional. See Butler I, 173 A.3d at 1217.

     The SVP procedure under SORNA I dictated that the trial court find the

relevant facts by clear and convincing evidence before concluding whether a


                                   - 16 -
J-S36011-19


defendant is required to register as an SVP, rather than submitting those facts

to the fact-finder to determine beyond a reasonable doubt. See id. Butler I

found the procedure “violates the federal and state constitutions because it

increases the criminal penalty to which a defendant is exposed without the

chosen fact-finder making the necessary factual findings beyond a reasonable

doubt,” in violation of Alleyne. Id. at 1218 (footnote and citation omitted).

The Butler I court held that a trial court could no longer designate defendants

as SVPs or hold SVP hearings until the legislature enacted a constitutional

procedure for SVP designation. See id.

      In response to Muniz and Butler I, the Pennsylvania General Assembly

passed SORNA II as a replacement for the invalidated portions of SORNA I.

See Commonwealth v. Bricker, 198 A.3d 371, 375 (Pa. Super. 2018). The

legislation divided sex offender registrants into two distinct subchapters. See

id. at 375-376. Subchapter H applies to “individuals who committed a sexually

violent offense on or after December 20, 2012, for which the individual was

convicted.” 42 Pa.C.S.A. § 9799.11(c). Subchapter I applies to individuals,

like Appellant, who committed a sexually violent offense “on or after April 22,

1996, but before December 20, 2012, whose period of registration with the

Pennsylvania State Police … has not expired[.]” 42 Pa.C.S.A. § 9799.52(1).


                                    - 17 -
J-S36011-19


      It was against this backdrop that the PCRA court in the instant case

concluded that the retroactive application of SORNA I’s registration

requirements to Appellant was invalid under Muniz and that Appellant's SVP

status was unconstitutional pursuant to this Court’s decision in Butler I. The

court then sought to determine what Appellant’s registration requirements

were in the wake of these two decisions.

      The PCRA court first rejected the Commonwealth’s argument that

Appellant should be subject to the lifetime registration requirements under

SORNA II. In doing so, the court concluded that SORNA II’s registration

provisions could not be applied retroactively to Appellant without violating the

constitutional prohibition against ex post facto laws because those provisions

were, in the PCRA court’s view, punitive in nature.

      The court reached this conclusion after conducting the “two step analysis

which considers whether the legislature’s intent was punitive and if not,

whether the statute’s effect or purpose is so punitive as to negate the stated

non-punitive intent.” PCRA Court Opinion at 16, citing Muniz, 164 A.3d at

1208. As for the first step, the PCRA court accepted the Pennsylvania General

Assembly’s explicit statement that SORNA II is non-punitive. However, after

analyzing the seven factors listed in Kennedy v. Mendoza-Martinez, 372


                                     - 18 -
J-S36011-19


U.S. 144 (1963), to determine whether legislation is sufficiently punitive in

effect so as to override the legislature’s stated intent, the PCRA court

concluded that the factors weighed in favor of finding that the registration

requirements of SORNA II were indeed punitive.3

        Given its conclusion that it could not constitutionally apply SORNA II’s

registration requirements to Appellant, the PCRA court turned to the

legislation that set forth the applicable registration requirements at the time

of Appellant’s offenses, Megan’s Law III. The PCRA court found, however, that

it could not direct Appellant’s registration under Megan’s Law III because that

legislation had been invalidated by Commonwealth v. Neiman, 84 A.3d 603

____________________________________________


3   The factors enumerated in Mendoza-Martinez include:



        (1) whether the sanction involves an affirmative disability or
        restraint; (2) whether it has historically been regarded as
        punishment; (3) whether it comes into play only on a finding of
        scienter; (4) whether its operation will promote the traditional
        aims of punishment—retribution and deterrence; (5) whether the
        behavior to which it applies is already a crime; (6) whether an
        alternative purpose to which it may rationally be connected is
        assignable for it; and (7) whether it appears excessive in relation
        to the alternative purpose assigned.



Commonwealth v. Abraham, 62 A.3d 343, 351 (Pa. 2012) (citations
omitted).




                                          - 19 -
J-S36011-19


(Pa. 2013). Unable to rely on Megan’s Law III, the court instead found

Appellant subject to registration under Megan’s Law II on the theory that in

cases where an act repeals its predecessor and is later found to be

unconstitutional, the repealed act will not be considered repealed absent

evidence that the legislature intended to rescind it without providing a

substitute. See PCRA Court Opinion, at 27 (stating that as “the last prior law

not held unconstitutional, Megan’s Law II[ ] will not be treated as repealed.”).

      Following the PCRA court’s decision and Appellant’s appeal of that

decision to this Court, our Supreme Court issued its opinion in Butler II,

which reversed this Court’s determination that the designation procedure for

SVPs was unconstitutional. In doing so, the Butler II Court announced at the

outset of its analysis that “SVPs are different from the non-SVP SORNA

registrants at issue in Muniz.” 2020 WL 1466299 at *10. The Court found, in

the first instance, that the Pennsylvania General Assembly intended for the

registration requirements applicable to SVPs in SORNA II to be non-punitive.

The Court then conducted an analysis using the Mendoza-Martinez factors

to determine whether those registration requirements had a punitive effect

and concluded that, on balance, the registration requirements as applied to




                                     - 20 -
J-S36011-19


SVPs did not constitute criminal punishment. See Butler II, 2020 WL

1466299 at *12-*16.

      In reaching its conclusion that the registration requirements as applied

to SVPs were non-punitive, the Supreme Court repeatedly emphasized the

heightened    public   safety   concerns   regarding   SVPs,   who   have   been

“individually determined to suffer from a mental abnormality or personality

disorder such that they are highly likely to continue to commit sexually violent

offenses.” Id. at *15. The Court therefore found that because the registration

requirements for SVPs were not punitive, the procedure for designating

individuals as SVPs was constitutionally permissible. See id. at *16.

      Butler II is dispositive of the instant case. Appellant was determined

to be an SVP, a designation specifically upheld as constitutional by Butler II.

See id. at *10. The Butler II Court was also clear in its determination that

the lifetime registration requirements applicable to SVPs in SORNA II are not

punitive in nature and do not amount to criminal punishment. See id. at *16.

As such, contrary to what the PCRA court found and what Appellant continues

to argue, subjecting Appellant to the registration requirements applicable to

SVPs under SORNA II does not constitute a violation of the constitutional

prohibition against ex post facto laws. See Muniz, 164 A.3d at 1208 (stating


                                      - 21 -
J-S36011-19


that ex post facto claims depend upon a finding that the sanctions at issue

constitute criminal punishment).

       Accordingly, while we agree with Appellant that he is not subject to

registration under Megan’s Law II, it is because SORNA II applies to him

instead. Appellant was determined to be an SVP. Based on Butler II, we

conclude that Appellant is therefore subject to the SVP registration

requirements of SORNA II and remand to the PCRA court to inform Appellant

of those requirements.4

       Order affirmed in part and reversed in part. Remanded for the PCRA

court to issue revised notice of Appellant’s registration requirements

consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/2/2020



____________________________________________


4 As noted above, Appellant’s relevant offenses occurred in 2010 and 2011.
Appellant is therefore subject to the SVP registration requirements contained
in subchapter I of SORNA II. See 42 Pa.C.S.A. § 9799.52(1).


                                          - 22 -
J-S36011-19




              - 23 -
