J-A13026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BARRETT TUNSIL                             :
                                               :
                       Appellant               :   No. 1990 EDA 2016

              Appeal from the Judgment of Sentence April 25, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0008448-2013


BEFORE:      LAZARUS, J., OTT, J. and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                               FILED DECEMBER 08, 2017

        Barrett Tunsil appeals from the judgment of sentence entered on April

25, 2016, in the Philadelphia County Court of Common Pleas, made final by

the denial of a post-sentence motion on June 6, 2016. On October 6, 2014,

a jury convicted Tunsil of unlawful contact with a minor, aggravated indecent

assault of a child, corrupting the morals of a minor, endangering the welfare

of a child (“EWOC”), and indecent assault.1 The court sentenced Tunsil to an

aggregate term of 25 to 54 years’ incarceration. On appeal, Tunsil raises a

myriad of claims, arguing the court erred with respect to various evidentiary


____________________________________________


*   Former Justice specially assigned to the Superior Court.

1  18 Pa.C.S. §§ 6318(a)(1), 3125(b), 6301(a)(1)(i), 4304(a)(1), and
3126(a)(7), respectively.
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rulings, in allowing a stipulation between the parties, in denying a continuance

so that he could present a witness at sentencing, in sentencing him to

consecutive sentences, and in finding him to be a sexually violent predator

(“SVP”).2 See Tunsil’s Brief at 7. After a thorough review of the submissions

by the parties, the certified record, and relevant law, we affirm in part and

reverse in part.

       The trial court set forth the underlying facts follows:

              The evidence at trial established that [the victim] was living
       with her mother and [Tunsil] who she referred to as her stepdad.
       [The victim], who was 8 at the time, was also residing with her
       younger sister and [Tunsil]’s daughter at [his] residence. It was
       during this time that [Tunsil] began to sexually abuse [the victim]
       by pulling her clothes down and inserting his finger into her vagina
       and sucking on her breast. This conduct occurred in the kitchen
       of the house when no one else was home and in [Tunsil]’s
       bedroom while the others were downstairs. [Tunsil] threatened
       to sell [the victim] to drug dealers or feed her to the rats if she
       told anyone. [The victim] estimated that she was sexually
       assaulted more than five (5) times between the age of eight (8)
       and nine (9) while residing in [Tunsil]’s home.

             [Tunsil] would punish [the victim] by pulling down her pants
       and spanking her with his bare hand. He would lock her in the
       basement in the dark prompting her to scream and kick on the
       door because she was so frightened. It wasn’t until [the victim]
       was removed from the home and placed with a foster family that
       she was comfortable enough to reveal the depravity she had
       endured.

             [Tunsil] testified and denied ever touching or abusing [the
       victim].



____________________________________________


2  We have reorganized the last two issues based on the nature of our
disposition.

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Trial Court Opinion, 9/2/2016, at 2 (record citations omitted).

       A jury trial was held from October 1, 2014, to October 6, 2014. On the

last day, the jury convicted Tunsil of the above-mentioned crimes.

Subsequently, Tunsil filed numerous pro se motions, including a request to

represent himself at his SVP hearing and sentencing. The trial court granted

this request on May 29, 2015, but provided that current counsel was to remain

as back-up counsel.

       On April 25, 2016, following an SVP hearing, the court found Tunsil to

be an SVP.      See N.T., 4/25/2016, at 65.      On that same date, the court

sentenced Tunsil to the following: (1) consecutive terms of nine to 20 years’

incarceration for both the aggravated indecent assault and unlawful contact

with a minor offenses; (2) a consecutive term of three-and-one-half to seven

years’ imprisonment for the EWOC charge; (3) a consecutive term of two-and-

a-half to five years’ incarceration for the corruption of minors offense; and (4)

a consecutive term of one to two years’ imprisonment for the indecent assault

charge. Id. at 91-92.

       Tunsil filed a counseled post-sentence motion on May 3, 2016. Several

days later, on May 19, 2016, Tunsil’s counsel filed a motion to withdraw. On

June 6, 2016, the trial court denied both motions. This appeal followed. 3


____________________________________________


3  On June 20, 2016, the trial court ordered Tunsil to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Tunsil filed
a concise statement on July 10, 2016. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on September 2, 2016.

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      With regard to Tunsil’s first issue, he maintains the cumulative effect of

the trial court’s erroneous rulings was harmful and deprived him of a fair trial.

See Tunsil’s Brief at 23. Tunsil states the court abused its discretion: (1) by

sustaining objections to certain questions the defense raised on cross-

examination; and (2) by allowing the Commonwealth to violate the best

evidence rule insofar as permitting a witness to summarize a video. See id.

at 23-34.

      Our standard of review concerning challenges to the admissibility of

evidence is as follows:

      The admissibility of evidence is a matter for the discretion of the
      trial court and a ruling thereon will be reversed on appeal only
      upon a showing that the trial court committed an abuse of
      discretion. An abuse of discretion may not be found merely
      because an appellate court might have reached a different
      conclusion, but requires a result of manifest unreasonableness, or
      partiality, prejudice, bias, or ill-will, or such lack of support so as
      to be clearly erroneous.

Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012) (citations and

quotation marks omitted).

      With respect to Tunsil’s contentions regarding the limitation on his

cross-examination, we are guided by the following.          “The scope of cross-

examination is a matter left to the sound discretion of the trial court, and the

trial court’s rulings will not be disturbed absent an abuse of discretion.”

Commonwealth v. Boczkowski, 846 A.2d 75, 96 (Pa. 2004). Moreover,

“[i]n this Commonwealth, cross-examination is ordinarily limited to matters

brought out on direct examination, except where the examiner is seeking to

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show bias.” Commonwealth v. Lobel, 440 A.2d 602, 605 (Pa. Super. 2009).

“A defendant has a fundamental right to present evidence provided that the

evidence is relevant and not subject to exclusion under one of our established

evidentiary rules.” Commonwealth v. McGowan, 535 Pa. 292, 635 A.2d

113, 115 (Pa. 1993) (citation omitted). Relevant evidence “tends to prove or

disprove some material fact, or tends to make a fact at issue more or less

probable.” Commonwealth v. Patterson, 91 A.3d 55, 71 (Pa. 2014), citing

McGowan, 635 A.2d at 115. Nevertheless, “[t]he right of confrontation does

not permit ‘fishing expeditions.’” Commonwealth v. Rosser, 135 A.3d 1077,

1088 (Pa. Super. 2016).

           The trial court may place reasonable limits on defense
     counsel’s cross-examination of a prosecution witness “based on
     concerns about, among other things, harassment, prejudice,
     confusion of the issues, the witness’ safety, or interrogation that
     is repetitive or only marginally relevant.” [Delaware v.] Van
     Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed. 2d 674
     (1986).      “Generally speaking, the Confrontation Clause
     guarantees an opportunity for effective cross-examination, not
     cross-examination that is effective in whatever way, and to
     whatever extent, the defense might wish.”            Delaware v.
     Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 88 L. Ed. 2d 15
     (1985).

            Van Arsdall articulates two inquiries for determining
     whether a limitation on cross-examination violates the
     confrontation clause. First, we inquire whether the limitation
     prejudiced the examination of that particular witness. In other
     words, absent the limitation, would the jury have received a
     “significantly different impression” of the witness’s credibility?
     [Van Arsdall, 475 U.S.] at 679-80. Second, if there was error,
     we must determine whether it was harmless beyond a reasonable
     doubt; if so, reversal is not warranted. Id. at 681.




                                    -5-
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Rosser, 135 A.3d at 1088. “Without such limits, unchecked cross-

examination on a theory of bias may unfairly prejudice the opposing party’s

case and only bring forth ‘marginally relevant’ evidence.” Id. at 1088-1089

(citation and quotation omitted).

      Turning to the present matter, Tunsil first argues the court erroneously

sustained a Commonwealth objection to the following question asked of

Denise Wilson, a forensic services manager and forensic interviewer for the

Philadelphia Children’s Alliance (“PCA”), who interviewed the victim on June

12, 2012: “Q. But you have really no way of knowing that [the victim] told

you the truth? A. I don’t.” N.T., 10/3/2014, at 36. Tunsil insists his question

was not a “fishing expedition” and

      [t]here would also have been no prejudice to the Commonwealth
      if Ms. Wilson had simply been allowed to answer the question. An
      answer of “no” would have underscored the lack of an independent
      investigation into the veracity of [the victim]’s claims, and that
      the jury was being asked to convict Tunsil based on the
      uncorroborated testimony of one alleged victim. An answer of
      “yes,” followed by an explanation on redirect, would have
      benefitted the Commonwealth.

Tunsil’s Brief at 26.

      We note the “objected-to” statement was not stricken from the record.

As such, Tunsil suffered no prejudice because the jury heard Wilson’s answer.

Accordingly, his first evidentiary issue fails.

      Next, Tunsil challenges the Commonwealth’s objection to the following

exchange between defense counsel and Wilson regarding the victim’s

concentration during the interview process:

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      Q. Now, I noticed that when you are speaking with [the victim],
      [she] is multi-tasking? She’s drawing at the same time?

      A. Yes.

      Q. Is that by design?

      A. We provide like blank paper or either crayons or markers for
      the kid just so they can have something to do in the room if they
      wish to.

      Q. Well, I understand doing that to make [the victim] feel
      comfortable but when you get to the portion of the interview
      where you’re really getting the substantive allegation, why did you
      permit [the victim] to continue multi-tasking?

      [The Commonwealth]: Objection.

      THE COURT: Sustained.

      [Defense Counsel]: Well, aren’t you afraid that [the victim] is not
      really concentrating on your questions?

      [The Commonwealth]: Objection.

      THE COURT: Sustained.

      [Defense Counsel]: [The victim] very rarely looked you in the eye
      when she recited her allegations?

      [The Commonwealth]: Objection.

      THE COURT: Sustained.

N.T., 10/3/2014, at 38-39. Tunsil contends, “These questions properly sought

to remind the jury that [the victim] provided an allegation with devastating

consequences to Tunsil while playing with crayons and markers.        The fair

inferences, that [the victim] made her allegations without focusing on details




                                     -7-
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and as a virtual afterthought, were relevant to [the victim]’s credibility.”

Tunsil’s Brief at 27.

       The court opined this testimony was either repetitive, not relevant,

argumentative, or a statement by counsel and not an actual question. Trial

Court Opinion, 9/2/2016, at 3. We agree with the trial court’s findings and

are not persuaded by Tunsil’s argument that the court was prohibiting him

from demonstrating the victim could have been distracted during the

interview.    Furthermore, as will be discussed supra, the jury was able to

observe the victim’s ability to concentrate and answer questions because the

interview with Wilson was recorded and shown to the jury in toto. See N.T.,

10/3/2014, at 29. As such, Tunsil’s second evidentiary claim fails.

       Third, Tunsil contends the court erred in sustaining an objection

regarding Detective Emmanuel Gonzalez’s testimony.4 On cross-examination,

Detective Gonzalez told defense counsel that he did not interview the victim

because possible victims are to be interviewed by the Philadelphia Children’s

Alliance. See N.T., 10/3/2014, at 78. Subsequently, defense counsel asked

him two questions, which are at issue: (1) “Well, aren’t you at all concerned

as a detective that perhaps children are being coached?”; and (2) “Well, didn’t

that occur to you, that [the victim] could have been coached?” Id. at 79.

Both questions were objected to by the Commonwealth, and sustained by the


____________________________________________


4 Detective Gonzalez was assigned to Child Abuse Unit of the Special Victims
Unit. See N.T., 10/3/2014, at 71.

                                           -8-
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trial court.    Id.    Tunsil maintains “[t]hese questions, going to whether

customary procedures require police to interview a complaining witness in a

felony case, and whether Detective Gonzalez had any concerns about the

nature of [the victim]’s statement (whether it sounded like a child’s account

or instead bore the marks of adult suggestions) were relevant points of inquiry

for the defense.” Tunsil’s Brief at 28. The trial court disagreed and reflected:

       The detective had already testified that the protocol was to have
       Philadelphia   Children’s   Alliance    interview   the    victim.
       Consequently what he may or may not have wanted was
       irrelevant…. The detective had testified he didn’t interview the
       witness and that he was responsible for processing the arrest
       paperwork and making the arrest. The question [regarding
       whether the victim was coached] was beyond the scope of the
       direct examination.

Trial Court Opinion, 9/2/2016, at 3. Viewing the evidence as a whole, we

concur with the trial court that these questions were either irrelevant or

outside the scope of direct examination. Accordingly, the trial court did not

abuse its discretion by sustaining these inquiries during Detective Gonzalez’s

testimony.

       Fourth, Tunsil claims the court abused its discretion in limiting his cross-

examination of Andrew Jarzyniecki, an employee of Philadelphia Department

of Human Services (“DHS”).5 See Tunsil’s Brief at 28. Jarzyniecki testified

the victim had told him that Tunsil was physically abusing her, including the



____________________________________________


5 Jarzyniecki was assigned to investigate a report of suspected abuse or
neglect with respect to the victim. N.T., 10/3/2014, at 45.

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spankings, an incident where Tunsil held her over a banister, and about him

locking her in the basement.        See N.T. 10/3/2014, at 52-53.         On cross-

examination, defense counsel asked Jarzyniecki the following questions: “(1)

Does DHS have a policy regarding corporal punishment?”; and (2) “Well, are

you   instructed   to   formulate   opinions    or   reports   relative   to   people

administering corporal punishment?”            Id. at 68-69.      Like above, the

Commonwealth objected to both questions and the trial court sustained those

objections. See id. The trial court explained its rationale as follows: “Mr.

Jarzyniecki was called by the Commonwealth to testify to his investigation of

the suspected abuse and neglect of complainant, [the victim]. As such the

questions concerning policies for corporal punishment were irrelevant to the

witness’[s] testimony.” Trial Court Opinion, 9/2/2016, at 4. Again, we agree

with the trial court’s reasoning. This line of questioning was not relevant to

the scope of Jarzyniecki’s direct examination. Accordingly, this evidentiary

claim is meritless.

      Tunsil next argues the trial court allowed the Commonwealth to violate

the best evidence rule insofar as it permitted a witness to summarize a video.

By way of background, a video of the victim’s PCA interview with Wilson was

played during Wilson’s direct examination.           See N.T., 10/3/2014, at 29.

Subsequently, during Jarzyniecki’s direct examination, he testified that he

observed the victim’s interactions during the PCA recorded interview. See id.




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at 53-54. Over objection, Jarzyniecki detailed what the victim said during the

interview regarding the sexual assault. See id. at 54. Tunsil asserts:

       It is no secret that repetition wins cases. In the above manner,
       the Commonwealth was erroneously allowed, through Mr.
       Jarzyniecki, to provide a summary of the video that was more
       concise and compelling than the statements of [the victim] that
       were actually played on the video for the jury. In effect, Mr.
       Jarzyniecki provided a “replay” that had more prejudicial impact
       than the original.

Tunsil’s Brief at 30.

       Tunsil’s argument is not actually an attack on the best evidence rule6 as

it is more concerned with the repeated admission of evidence concerning the

victim’s interview.     In any event, the best evidence rule was not violated

because the videotape was admitted prior to Jarzyniecki’s testimony and the

jury was given the opportunity to view the entire interview. Furthermore, as


____________________________________________


6   The “best evidence rule”

       is codified in Pennsylvania Rule of Evidence 1002, which provides:
       “An original writing, recording, or photograph is required in order
       to prove its content unless these rules, other rules prescribed by
       the Supreme Court, or a statute provides otherwise.” Pa.R.E.
       1002. Courts apply the best-evidence rule when the contents of
       documentary evidence are at issue — that is, if the terms of a
       writing must be proven to make a case or provide a defense.
       Commonwealth v. Townsend, 2000 PA Super 32, 747 A.2d
       376, 380 (Pa. Super. 2000). Thus, Rule 1002 requires that an
       original writing, recording, or photograph be introduced at trial
       only if the proponent must prove the contents of the writing,
       recording, or photograph to prove the elements of its case. Id.

Commonwealth v. Ribot, 169 A.3d 64, 67 (Pa. Super. 2017).



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the Commonwealth mentions, “[t]here is nothing in the best evidence rule

that bars the Commonwealth from referencing a recording once its content

has been proven.” Commonwealth’s Brief at 18. Additionally, as the trial

court points out, “Jarzyniecki was describing his investigation and how he

conducted his investigation as well as what he learned through that

investigation.    The testimony was clearly relevant and simply because it

repeated testimony previously received doesn’t make it error.”       Trial Court

Opinion, 9/2/2016, at 4.7

       Furthermore, if there was such an error in admitting this testimony, it

was harmless.

       Harmless error exists if the state proves either: (1) the error did
       not prejudice the defendant or the prejudice was de minimis; or
       (2) the erroneously admitted evidence was merely cumulative of
       other untainted evidence which was substantially similar to the
       erroneously admitted evidence; or (3) the properly admitted and
       uncontradicted evidence of guilt was so overwhelming and the
       prejudicial effect of the error was so insignificant by comparison
       that the error could not have contributed to the verdict.

Commonwealth v. Burno, 154 A.3d 764, 787 (Pa. 2017), quoting

Commonwealth v. Simmons, 662 A.2d 621, 633 (Pa. 1995). The second

prong of the harmless error test would apply here – that the evidence of




____________________________________________


7 Jarzyniecki’s testimony regarding what he witnessed during his observation
of the interview does not impact the best evidence rule. See Commonwealth
v. Bennett, 124 A.3d 327, 332 (Pa. Super. 2015) (“The best evidence rule
does not address the Commonwealth's presentation of video versus
eyewitness testimony.”).

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Jarzyniecki’s testimony was merely cumulative of the other untainted

evidence, namely the videotape. Accordingly, this evidentiary issue fails.

        Lastly, we find that because all of Tunsil’s evidentiary claims were

without merit, his argument that the cumulative effect of the trial court’s

erroneous rulings was harmful and deprived him of a fair trial, also fails. See

Commonwealth v. Freeman, 827 A.2d 385, 416 (Pa. 2003) (“[i]t is settled

... that no number of failed claims may collectively attain merit if they could

not do so individually.”) (internal quotations omitted).

        In Tunsil’s second argument, he contends the trial court erred in

granting a stipulation because it violated his constitutional rights to confront

and cross-examine a key Commonwealth witness, Diane Dawkins.                     See

Tunsil’s Brief at 31. Tunsil states the court “should have engaged in a colloquy

with Tunsil to determine if he agreed with the following stipulation[:]”8

               There’s been a stipulation by and between counsel that if
        called to testify, Diane Dawkins will testify that she is the previous
        foster mother to [the victim] and [her sister]. She would testify
        that in late May of 2012, while DHS worker Charles Williams was
        at her home, [the victim’s] stepfather, Mr. Tunsil, would call [the
        victim] his favorite and would sexually abuse her. Ms. Dawkins
        asked [the victim] why she would not say anything before and
        [the victim] said because no one had ever asked her about good
        touch or bad touch before.

                                               …

        Ms. Dawkins was unable to testify at trial because she had an out
        of state family emergency she had to attend to.


____________________________________________


8   Tunsil’s Brief at 32.

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N.T., 10/3/2014, at 82.

      Tunsil argues:

            [T]he stipulation was harmful to the defense case on
      multiple levels. First, it allowed the jury to hear the testimony of
      Ms. Dawkins, without any cross-examination as to the
      circumstances of what [the victim] supposedly told her, and
      without the opportunity for the jury to do an independent
      assessment of Ms. Dawkin[s’] credibility. Second, the stipulation
      also allowed the jury to hear additional testimony from [the
      victim], long after she left the witness stand and was no longer
      subject to cross-examination, that confirmed her previous
      allegations of sexual abuse at the hands of Mr. Tunsil. The record
      shows no advantage to the defense from agreeing to the
      stipulation, but multiple bases for unfair prejudice. If Tunsil had
      rejected the proposed stipulation, the most likely outcome was
      that the jury would not have heard from Ms. Dawkins. Even if the
      Court had granted a continuance allowing the Commonwealth to
      bring Ms. Dawkins into court for live testimony, a continuance
      would not have prejudiced Tunsil, because he had already been in
      custody for more than two years at the time of trial.

             Under these circumstances, the Court should have rejected
      the stipulation unless it determined, either sua sponte or through
      defense counsel, that Mr. Tunsil agreed with it. This safeguard of
      Tunsil’s confrontation and cross-examination rights would have
      required at most a few minutes of the Court’s time during a recess.
      The Court followed this procedure when determining if Tunsil
      agreed with defense counsel’s recommendation to not call Corinne
      Pettis as a defense witness. Tunsil’s rights of confrontation were
      as deserving of protection as his constitutional right to call defense
      witnesses of his choice. The [t]rial [c]ourt’s approval of a
      stipulation that was prejudicial to Tunsil on multiple levels without
      any corresponding benefit violated Tunsil’s rights to confrontation
      and cross-examination under the Sixth Amendment and Article I,
      [S]ection 9 of the Pennsylvania Constitution.

Tunsil’s Brief at 32-33 (reproduced record citations omitted).

      Before we may address the substance of this claim, we note Tunsil raises

this issue for the first time in his concise statement. See Tunsil’s Concise


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Statement of Matters Complained of on Appeal Pursuant to Pa.R.A.P.

1925(b)(4), 7/10/2016, at 4-6. A review of the records reveals he did not

raise the issue at trial or in his post-sentence motions.

       It is well-settled that “[i]ssues not raised in the [trial] court are waived

and cannot be raised for the first time on appeal.”            Pa.R.A.P. 302(a).

Moreover, “it is axiomatic that issues are preserved when objections are made

timely to the error or offense.” Commonwealth v. Baumhammers, 960

A.2d 59, 73 (Pa. 2008). “The purpose of contemporaneous objection

requirements respecting trial-related issues is to allow the court to take

corrective measures and, thereby, to conserve limited judicial resources.”

Commonwealth v. Sanchez, 36 A.3d 24, 42 (Pa. 2011). “[A] party may not

remain silent and afterwards complain of matters which, if erroneous, the

court would have corrected.” Commonwealth v. Strunk, 953 A.2d 577, 579

(Pa. Super. 2008). Turning to the present matter, because Tunsil failed to

raise a timely and specific objection with respect to the stipulation, he has

waived this issue.9

____________________________________________


9 Assuming, arguendo, that Tunsil did properly preserve the claim, we would
rely on the trial court’s findings:

              At trial, [Tunsil] entered into a stipulation to the testimony
       of Diane Dawkins. Now, [Tunsil], through new counsel, argues
       that it was error to stipulate to the testimony because it deprived
       him of the right to cross examine and confront the witness.
       [Tunsil] contends that the Court had a duty to make sure the
       decision to enter into the stipulation was with [Tunsil]’s



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        In his third argument, Tunsil complains the trial court erred in failing to

grant his continuance request that was necessary for him to enforce a

subpoena that had been properly served on a defense witness, his daughter,

for the sentencing hearing. See Tunsil’s Brief at 34. By way of a background,

Tunsil states that while he was awaiting sentencing, the trial court entered an

order, permitting his daughter, Corrine N. Pettis, to be subpoenaed.          See

Order, 9/4/2015.10 Despite proper service, Pettis did not appear at Tunsil’s

sentencing and consequently, defense counsel requested a continuance to

allow Pettis to be brought into court. See N.T., 4/25/2016, at 3-9. When

asked about Pettis, counsel stated, “This is a biological daughter living in the

household who, with my understanding, from Mr. Tunsil, would confirm that



____________________________________________


        agreement. No such duty exists. First and foremost, [Tunsil] was
        present and took the stand in his own defense. At no time has he
        complained about the stipulation that was entered into with the
        Commonwealth. More importantly, [Tunsil]’s counsel insisted on
        the stipulation so he could argue the inconsistencies in [the
        victim]’s accounts in closing argument. This Court had no duty to
        ensure [Tunsil] was comfortable with the stipulation and counsel
        cannot be faulted simply because his strategy failed.        See
        Commonwealth v. Speight, 677 A.2d 317, 322 (Pa. 1996) (did
        decision by trial counsel have “some reasonable basis designed to
        effectuate … client’s interests, and if so … inquiry ends”).

Trial Court Opinion, 9/2/2016, at 4 (record citation omitted). Additionally, we
note Tunsil provides no support for his assertion that the trial court should
have colloquied him regarding his understanding and acceptance of the
stipulation. Tunsil’s allegation would be better suited for an ineffective
assistance of counsel claim in a post-conviction collateral petition.

10   Pettis did not testify at Tunsil’s trial.

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he did what he was supposed to as a dad. He put food on the table and he

never abused [Pettis]. She is expected to confirm that.” Id. at 4-5. The

court stated it would not relitigate the issue of whether Tunsil sexually

assaulted the victim.    See id. at 5.   Counsel then responded that Pettis’s

testimony would be relevant to one of the SVP factors, that his conduct did

not involve multiple victims.   See id.      After some discussion, the parties

stipulated there was only one victim in this specific case.      See id. at 7.

Defense counsel stated he still wanted Pettis’s testimony to show that Tunsil

“was a good dad[.]” Id. at 8. The court then denied the continuance request,

stating its rationale:

            This case is almost a year and a half old from the time when
      the jury rendered their verdict. It has been continued a number
      of times, and I’m not going to continue it anymore. I believe the
      Commonwealth has said they would stipulate to certain things that
      you’re requesting; and, quite frankly, the issue isn’t whether or
      not [Tunsil] put food on the table and a roof over their heads.
      That’s not the issue, but your objection is noted.

Id. at 9.

      Tunsil argues his “rights to compulsory process under the Sixth

Amendment and as further guaranteed by Article 1, [S]ection 9 of the

Pennsylvania Constitution extended through sentencing.” Tunsil’s Brief at 36.

Relying on the continuance test in Commonwealth v. Maute, 485 A.2d 1138,

1144 (Pa. Super. 1984), Tunsil complains he should have been granted a

continuance because: (1) Pettis “was ‘necessary to strengthen the defense,’

as she would have provided a description of the Tunsil household that was


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J-A13026-17


radically different from (to quote the [t]rial [c]ourt) the ‘atmosphere of cruelty

and manipulation’ invoked by [the victim]”;11 (2) Tunsil exercised all possible

diligence to secure Pettis’s attendance at trial (by hiring a private investigator,

issuing a subpoena, serving said subpoena);12 and (3) “with a valid address

and phone number for [Pettis’ legal guardian], there was every likelihood that

the Court could have compelled compliance with the [s]ubpoena, by sending

a [d]eputy [s]heriff to the residence.”13

       Our standard of review regarding continuances is well-settled:

       The grant or denial of a motion for a continuance is within the
       sound discretion of the trial court and will be reversed only upon
       a showing of an abuse of that discretion. [A]n abuse of discretion
       is not merely an error of judgment. Rather, discretion is abused
       when the law is over-ridden or misapplied, or the result of
       partiality, prejudice, bias, or ill-will as shown by the evidence or
       the record. The grant of a continuance is discretionary and a
       refusal to grant is reversible error only if prejudice or a palpable
       and manifest abuse of discretion is demonstrated.

Commonwealth v. Hansley, 24 A.3d 410, 418 (Pa. Super. 2011), appeal

denied, 32 A.3d 1275 (Pa. 2011) (citation omitted). Further, “[i]n reviewing

a denial of a continuance, the appellate court must have regard for the orderly

administration of justice[.]” Id. (citation omitted).




____________________________________________


11   Tunsil’s Brief at 36 (reproduced record citations omitted).

12   Id. at 37.

13   Id.

                                          - 18 -
J-A13026-17


     In Maute, which Tunsil relies on, a panel of this Court addressed the

decision to grant or refuse a continuance based on a material witness:

     The considerations which underlie the exercise of a trial judge's
     discretion to grant or refuse a continuance based on the absence
     of a material witness include whether the witness is essential to
     the defense or necessary to strengthen the defense, the diligence
     exercised to procure the witness’ presence at trial, the facts to
     which the witness could testify, and the likelihood that the witness
     could be procured at the next term of court.

Commonwealth v. Maute, 485 A.2d 1138, 1144 (Pa. Super. 1984), citing

Commonwealth v. Howard, 353 A.2d 438, 439 (Pa. 1976). The Howard

Court also opined: “If testimony which an absent witness would give is merely

cumulative or available from another source, then a continuance may be

properly denied.” Id.

     Here, the court explained its reasoning as follows:

           This witness, Corrine Pettis, was present at trial and [Tunsil]
     decided not to call her as a witness. [Tunsil] was convicted of
     these crimes by a jury on October 6, 2014. A Megan’s Law
     assessment was ordered and the matter was continued for
     sentencing. Thereafter, the sentencing hearing was continued on
     January 14, 2015; February 27, 2015; May 29, 2015; August 10,
     2015; September 4, 2015; September 21, 2015; October 23,
     2015; and December 21, 2015. [Tunsil]’s sentencing hearing
     occurred 567 days after the verdict in his case. This Court was
     not receptive to prolonging the matter any longer. This was
     because all of the continuances were at the behest of [Tunsil].
     The first two continuances were joint requests. However, the
     remaining six continuances were defense requests. Moreover, the
     Commonwealth agreed to stipulate to the proposed testimony.
     [Tunsil] was not prejudiced by the denial of his request for a
     continuance.

Trial Court Opinion, 9/2/2016, at 5 (citations omitted). Based on the specific

circumstances of this case (including the fact that the continuance request

                                    - 19 -
J-A13026-17


was made after eight continuances were already granted in the matter, the

request was made at sentencing as opposed to trial, and the Commonwealth

stipulated to certain testimony regarding the witness), we do not find that the

trial court demonstrated “prejudice or a palpable and manifest abuse.”

Hansley, 24 A.3d at 418. Accordingly, Tunsil’s third argument fails.

        Next, Tunsil claims his aggregate sentence was manifestly excessive and

amounted to cruel and unusual punishment. See Tunsil’s Brief at 41. Tunsil

states the imposition of consecutive sentences is not proportional to the

crimes where it was a case “that involved no indecent exposure, intercourse,

or ejaculation[.]”      Id.     With respect to his sentence being manifestly

excessive, Tunsil points to the following: (1) the victim did not sustain serious

physical injuries as a result of his fondling; (2) it appears the victim has been

able to move on from “whatever”14 happened at his home; and (3) there was

a 34-year lapse between his prior conviction and the present assault. See id.

at 43.     He states, “The Court did not explain the basis for consecutive

sentences on April 25, 2016, for charges that evidently arose from the same

factual circumstances.”       Id. at 44.       With regard to his excessive sentence

amounting to cruel and unusual punishment, Tunsil relies on Commonwealth

v. Barnett, 50 A.3d 176 (Pa. 2012). See Tunsil’s Brief at 46. He contends




____________________________________________


14   Tunsil’s Brief at 43.

                                          - 20 -
J-A13026-17


the facts in his case were not so lurid as those in Barnett, and therefore, the

aggregate sentence imposed was grossly disproportionate. Id. at 47-48.

      As presented, Tunsil’s issues challenge the discretionary aspects of his

sentence. See Commonwealth v. Lutes, 793 A.2d 949 (Pa. Super. 2002)

(explaining argument that sentence is manifestly excessive challenges

discretionary aspects of sentencing). “A challenge to the discretionary aspects

of a sentence must be considered a petition for permission to appeal, as the

right to pursue such a claim is not absolute.” Commonwealth v. Hoch, 936

A.2d 515, 518 (Pa. Super. 2007) (citations and quotation marks omitted). To

reach the merits of a discretionary issue, this Court must determine:

      (1) whether appellant has filed a timely notice of appeal; (2)
      whether the issue was properly preserved at sentencing or in a
      motion to reconsider and modify sentence; (3) whether
      appellant’s brief has a fatal defect; and (4) whether there is a
      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code.

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011)

(footnotes omitted).

      Here, Tunsil filed a timely notice of appeal and included the requisite

statement pursuant to Pa.R.A.P. 2119(f) in his appellate brief. See Tunsil’s

Brief at 22-23. Moreover, counsel for Tunsil preserved the claims by raising

them in the May 3, 2016, post-sentence motion. Therefore, we may proceed

to determine whether Tunsil has presented a substantial question that the

sentence appealed from is not appropriate under the Sentencing Code.




                                    - 21 -
J-A13026-17


Commonwealth v. Edwards, 71 A.3d 323, 330 (Pa. Super. 2013), appeal

denied, 81 A.3d 75 (Pa. 2013).

     With respect to whether an issue presents a substantial question, we

are guided by the following:

     The determination of what constitutes a substantial question must
     be evaluated on a case-by-case basis. See Commonwealth v.
     Paul, 2007 PA Super 134, 925 A.2d 825 (Pa. Super. 2007). “A
     substantial question exits only when the appellant advances a
     colorable argument that the sentencing judge’s actions were
     either: (1) inconsistent with a specific provision of the Sentencing
     Code; or (2) contrary to the fundamental norms which underlie
     the sentencing process.” Commonwealth v. Griffin, 2013 PA
     Super 70, 65 A.3d 932, 2013 WL 1313089, *2 (Pa. Super. filed
     4/2/13) (quotation and quotation marks omitted).

Edwards, 71 A.3d at 330 (citation omitted). Moreover,

        [w]e have stated that the imposition of consecutive rather
        than concurrent sentences lies within the sound discretion
        of the sentencing court. Long standing precedent of this
        Court recognizes that 42 Pa.C.S.[] § 9721 affords the
        sentencing court discretion to impose its sentence
        concurrently or consecutively to other sentences being
        imposed at the same time or to sentences already imposed.
        A challenge to the imposition of consecutive rather than
        concurrent sentences does not present a substantial
        question regarding the discretionary aspects of sentence. ...

     However, we have recognized that a sentence can be so
     manifestly excessive in extreme circumstances that it may create
     a substantial question. When determining whether a substantial
     question has been raised, we have focused upon whether the
     decision to sentence consecutively raises the aggregate sentence
     to, what appears upon its face to be, an excessive level in light of
     the criminal conduct in this case.

Commonwealth v. Zirkle, 107 A.3d 127, 133-134 (Pa. Super. 2014)

(citations and internal quotation marks omitted).


                                    - 22 -
J-A13026-17


       Here, the criminal conduct included evidence that Tunsil, who was in a

caretaker role, sexually abused the victim for over a year and on multiple

occasions. He threatened her with certain consequences so she would not tell

anyone about the abuse, physically punished her, and locked her in the

basement for long time periods.15 Tunsil also had a prior criminal history of

sexually abusing a child.        As indicated above, Tunsil received consecutive

sentences for the crimes of unlawful contact with a minor, aggravated

indecent assault of a child, corrupting the morals of a minor, EWOC, and

indecent assault, which amounted to 25 to 54 years’ incarceration. Pursuant

to Zirkle, given the natures of the crimes at issue and the circumstances

surrounding those convictions as well as the length of his sentence, we

conclude the trial court’s decision to impose consecutive sentences did not

result in a facially excessive sentence. Therefore, Tunsil’s claim fails to raise

a substantial question. See id.16

____________________________________________


15  The victim even testified to the following: “Well, when I usually didn’t eat
all my food, he’ll put me downstairs in the basement where it’s like a big hole
and then he’ll say it’s like rats down there and then he’ll put peanut butter all
over me and tie me up to the wall.” N.T., 10/2/2014, at 26.

16   In any event, we note:

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



                                          - 23 -
J-A13026-17


       Moreover, to the extent Tunsil claims his aggregate sentence amounts

to cruel and unusual punishment, we find his assertion is just another

reiteration of his manifestly excessive argument. Nevertheless, we note both

the Eighth Amendment of the United States Constitution and Article 1, Section

13 of the Pennsylvania Constitution, forbid the imposition of “cruel and

unusual punishments.” U.S. Const., amend. VIII; Pa. Const., Art. 1, Sec. 13.

See Commonwealth v. Spells, 612 A.2d 458, 461 (Pa. Super. 1992) (the

guarantee against cruel punishment in the state and federal constitutions is

coextensive), appeal dismissed as improvidently granted, 643 A.2d 1078 (Pa.

1994). This Court has explained that a punishment is cruel and unusual if it




____________________________________________


       judgment for reasons of partiality, prejudice, bias or ill will, or
       arrived at a manifestly unreasonable decision.

Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa. Super. 2013). Here, the
trial court addressed Tunsil’s challenge as follows:

       This Court took into account all of the factors delineated in 42
       Pa.C.S. § 9721(b). As stated on the record, this Court considered
       all of the reports, the arguments of counsel, the testimony from a
       lengthy sentencing hearing and the guidelines in fashioning an
       appropriate sentence. Here based on [Tunsil]’s prior history of
       sexually abusing children and the high risk that given the chance
       he would reoffend, a sentence running consecutive was
       reasonable and appropriate.

Trial Court Opinion, 9/2/2016, at 6. Based on the record, we would find the
trial court did not abuse its discretion in imposing Tunsil’s sentence.

                                          - 24 -
J-A13026-17


is “wholly and irrationally disproportionate to the crime,”17 or, in other words,

“so greatly disproportionate to an offense as to offend evolving standards of

decency or a balanced sense of justice.” Commonwealth v. Ehrsam, 512

A.2d 1199, 1210 (Pa. Super. 1986), appeal denied, 527 A.2d 535 (Pa. 1987),

cert. denied, 439 U.S. 932 (1989). Here, as provided above, we conclude that

Tunsil’s repeated sexual and emotional abuse of the victim for over a year

warrants the imposition of consecutive sentences and does not amount to

cruel and unusual punishment.18

       In his final claim, Tunsil asserts the trial court erroneously concluded

that he was an SVP because the Commonwealth failed to prove such a

determination by clear and convincing evidence. See Tunsil’s Brief at 38.

       Prior to analyzing the issue, we sua sponte discuss the impact of the

recent decision in Commonwealth v. Butler, __ A.3d __, 2017 PA Super 344




____________________________________________



17 Commonwealth v. Yasipour, 957 A.2d 734, 743 (Pa. Super. 2008),
appeal denied, 980 A.2d 111 (Pa. 2009).
18 We also note Tunsil’s reliance on Barnett is misplaced. As indicated above,

Tunsil alleges the facts in that case are more lurid than in the present matter
and therefore, his sentence should be considered cruel and unusual. However,
Tunsil’s claims fails to take into consideration that he was convicted of a more
serious offense, aggravated indecent assault, than the defendant in Barnett.
Therefore, one cannot conclusively determine that one case is more “lurid”
than another. Accordingly, his argument fails.




                                          - 25 -
J-A13026-17


[1225 WDA 2016] (Oct. 31, 2017),19 which addressed the issue of “whether

the framework for designating a convicted defendant an SVP, which in this

case increased Appellant’s minimum registration requirement [under the

Pennsylvania’s Sex Offender Registration and Notification Act (SORNA), 42

Pa.C.S. §§9799.10-9799.41], implicates the legality of his or her sentence.”

Butler, __ A.3d at __, 2017 PA Super 344, *4 (Oct. 31, 21017).20 The Butler

court further explained the issue as follows:

       To understand the issue presented in this case, it is necessary to
       review the relevant portions of SORNA that address SVPs. Under
       SORNA, an individual convicted of a sexually violent offense, such
       as sexually corrupting minors in this case, must be evaluated by
       the SOAB. 42 Pa.C.S.A. § 9799.24(a). The SOAB conducts a 15-
       factor analysis to determine if the individual should be designated
____________________________________________


19  “[T]he general rule in Pennsylvania is to apply the law in effect at the time
of the appellate decision.” Commonwealth v. Housman, 986 A.2d 822, 840
(Pa. 2009).
20 While we acknowledged Tunsil did not raise the issue of Butler’s
application to his case, we are guided by the following:

       Generally, issues not raised before the trial court are waived for
       appellate purposes. Pa.R.A.P. 302(a). Similarly, this Court
       generally may not reverse, modify, or vacate an order or
       judgment of sentence for a reason not raised by the parties. See
       Johnson v. Lansdale Borough, 146 A.3d 696, 709 (Pa. 2016)
       (citations omitted). Notwithstanding these general rules, “[a]
       challenge to the legality of a particular sentence may be reviewed
       by any court on direct appeal; it need not be preserved in the
       lower courts to be reviewable and may even be raised by an
       appellate court sua sponte.” Commonwealth v. Batts, 163 A.3d
       410, 434 (Pa. 2017) (citation omitted).

Butler, __ A.3d at __, 2017 PA Super 344, *4 (Oct. 31, 21017). With respect
to legality of sentencing questions, our standard of review is de novo and our
scope of review is plenary. See Commonwealth v. Nero, 58 A.3d 802, 805
(Pa. Super. 2012).

                                          - 26 -
J-A13026-17


        an SVP. 42 Pa.C.S.A. § 9799.24(b). The SOAB then submits a
        report to the prosecuting authority. 42 Pa.C.S.A. § 9799.24(d).
        Upon praecipe by the prosecuting authority, the trial court
        schedules an SVP hearing. 42 Pa.C.S.A. § 9799.24(e)(1). At the
        conclusion of that hearing, “the court [determines] whether the
        Commonwealth has proved by clear and convincing evidence that
        the individual is a[n SVP].” 42 Pa.C.S.A. § 9799.24(e)(3). It is
        this last step in the process, section 9799.24(e)(3), that is at issue
        in this case.

Butler, __ A.3d at __, 2017 PA Super 344, *6-7 (Oct. 31, 21017).

        The Butler court relied on a recent decision by the Pennsylvania

Supreme Court in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). In

Muniz, the Supreme Court reversed the longstanding legal precedence of this

Commonwealth by holding that registration requirements under SORNA were

not civil in nature but punitive, and, consequently, the retroactive application

of SORNA’s registration provisions violated the ex post facto clauses of the

United States and Pennsylvania Constitutions. Id. at 1218.

        The Butler court also noted the current controlling law with respect to

mandatory minimum sentences.             In Alleyne v. United States, 133 S.Ct.

2151 (U.S. 2013), the United States Supreme Court held that “[a]ny fact that,

by law, increases the penalty for a crime is an ‘element’ that must be

submitted to the jury and found beyond a reasonable doubt.” Alleyne, 133

S.Ct. at 2155. The Court expanded upon its holding in Apprendi,21 which

applied only to facts that increased the statutory maximum for a crime, to


____________________________________________


21   Apprendi v. New Jersey, 530 U.S. 466 (2000).


                                          - 27 -
J-A13026-17


include facts, which increase the mandatory minimum sentence. Id.            The

Butler court stated:

        Apprendi and Alleyne apply to all types of punishment, not just
        imprisonment. See S. Union Co. v. United States, 567 U.S.
        343, 346-360, 132 S. Ct. 2344, 183 L. Ed. 2d 318 (2012). Thus,
        as our Supreme Court has stated, if registration requirements are
        punishment, then the facts leading to registration requirements
        need to be found by the fact-finder chosen by the defendant, be
        it a judge or a jury, beyond a reasonable doubt.             See
        Commonwealth v. Lee, 594 Pa. 266, 935 A.2d 865, 880 (Pa.
        2007). In Lee, our Supreme Court considered whether Megan’s
        Law II’s[22] requirement that SVPs register for life violated
        Apprendi. Our Supreme Court stated that defendants only
        succeeded on their claim

          if [our Supreme Court] accept[s] the premise, which [it had]
          all but categorically rejected in [its] prior cases, that the
          registration, notification, and counseling provisions of
          Megan’s Law II [were] punitive in the constitutional sense,
          thus requiring observance of all the due process protections
          that attend criminal prosecution, especially those identified
          by the [Supreme Court of the United States’] decision in
          Apprendi.

        Id.

Butler, __ A.3d at __, 2017 PA Super 344, *10-11 (Oct. 31, 21017).

        With Muniz, Alleyne, and Apprendi in mind, the Butler court then

held:

        We recognize that our Supreme Court did not consider the
        ramifications of its decision in Muniz with respect to individuals
        designated as SVPs for crimes committed after SORNA’s effective
        date. Nonetheless, our Supreme Court’s holding that registration
        requirements under SORNA constitute a form of criminal
        punishment is dispositive of the issue presented in this case. In
        other words, since our Supreme Court has held that SORNA
____________________________________________


22   Megan’s Law was the predecessor to SORNA.

                                          - 28 -
J-A13026-17


     registration requirements are punitive or a criminal penalty to
     which individuals are exposed, then under Apprendi and
     Alleyne, a factual finding, such as whether a defendant has a
     “mental abnormality or personality disorder that makes [him or
     her] likely to engage in predatory sexually violent offenses[,]” 42
     Pa.C.S.A. § 9799.12, that increases the length of registration
     must be found beyond a reasonable doubt by the chosen fact-
     finder. Section 9799.24(e)(3) identifies the trial court as the
     finder of fact in all instances and specifies clear and convincing
     evidence as the burden of proof required to designate a convicted
     defendant as an SVP. Such a statutory scheme in the criminal
     context cannot withstand constitutional scrutiny. Accordingly, we
     are constrained to hold that section 9799.24(e)(3) is
     unconstitutional and [the a]ppellant’s judgment of
     sentence, to the extent it required him to register as an SVP
     for life, was illegal.

     As the sole statutory mechanism for SVP designation is
     constitutionally flawed, there is no longer a legitimate path
     forward for undertaking adjudications pursuant to section
     9799.24. As such, trial courts may no longer designate
     convicted defendants as SVPs, nor may they hold SVP
     hearings,     until    our     General     Assembly       enacts    a
     constitutional        designation        mechanism.12              Cf.
     Commonwealth v. Hopkins, 632 Pa. 36, 117 A.3d 247, 258-
     262 (Pa. 2015) (finding that trial courts cannot impose mandatory
     minimum sentences until the General Assembly enacts a statute
     which provides a constitutional mechanism to determine if the
     defendant is subject to the mandatory minimum sentence).
     Instead, trial courts must notify a defendant that he or she is
     required to register for 15 years if he or she is convicted of a Tier
     I sexual offense, 25 years if he or she is convicted of a Tier II
     sexual offense, or life if he or she is convicted of a Tier III sexual
     offense.

     In sum, we are constrained to hold that section 9799.24(e)(3) of
     SORNA 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.          Moreover, we are
     constrained to hold trial courts cannot designate convicted
     defendants SVPs (nor may they hold SVP hearings) until our
     General Assembly enacts a constitutional designation mechanism.
     Instead, trial courts must notify a defendant that he or she is

                                    - 29 -
J-A13026-17


      required to register for 15 years if he or she is convicted of a Tier
      I sexual offense, 25 years if he or she is convicted of a Tier II
      sexual offense, or life if he or she is convicted of a Tier III sexual
      offense.

      _____________________

         12  Allowing a jury or the trial court (in a waiver trial) to
         make an SVP determination during the guilt phase of a trial
         runs counter to the plain language of section 9799.24(e)(3)
         of SORNA and raises a myriad of other constitutional
         concerns. Because of these problems, and because Muniz
         now deems SORNA a punitive statute and no longer a
         collateral civil consequence of a sex offense conviction, we
         are constrained to hold that the adjudicative provisions
         found in section 9799.24(e)(3) are no longer constitutional
         and not severable from the remainder of the SVP
         designation framework.

Id. at 11-14 (emphasis added; one footnote omitted).

      Turning to the present matter, SORNA applies to Tunsil’s case, in which

he was deemed an SVP at the April 25, 2016, SVP hearing and ordered to

comply with the lifetime registration requirements based on his aggravated

indecent assault conviction. See 42 Pa.C.S. 9799.13(1) (SORNA applies to a

person convicted of a “sexually violent offense” on or after the effective date

of the section, which was December 20, 2012); § 9799.12 (defining “sexually

violent offense” as Tier I, II, or III offense listed in § 9799.14); §

9799.14(d)(7) (classifying aggravated indecent assault as a Tier III sexual

offense); § 9799.15(a)(3) (“[a]n individual convicted of a Tier III sexual

offense shall register for the life of the individual”).

      Accordingly, and pursuant to the Butler decision, we are constrained to

reverse the trial court’s April 25, 2016, sentencing order finding that Tunsil is

                                       - 30 -
J-A13026-17


an SVP as such a determination is no longer valid. Therefore, we remand for

the sole purpose of having the trial court issue the appropriate notice under

42 Pa.C.S § 9799.23 as to his registration requirements. Butler, __ A.3d at

__, 2017 PA Super 344, *13 (Oct. 31, 21017). Furthermore, we need not

address the issue Tunsil raised on appeal, which challenged the sufficiency of

his SVP designation.

       Order reversed. Judgment of sentence affirmed in all other respects.

Case remanded. Jurisdiction relinquished.23

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2017




____________________________________________


23 In conjunction with our decision, we grant the Commonwealth’s May 12,
2017, motion to correct an omission in the record pursuant to Pa.R.A.P. 1926.
We agree the missing documents were useful to the resolution of the issues
on appeal.

                                          - 31 -
