J-S82025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    PATRICK LEROY RUGG                         :
                                               :
                      Appellant                :   No. 535 WDA 2017

             Appeal from the Judgment of Sentence January 6, 2017
      In the Court of Common Pleas of Cambria County Criminal Division at
                        No(s): CP-11-CR-0001342-2010


BEFORE:      BENDER, P.J.E., STEVENS*, P.J.E., and STRASSBURGER**, J.

MEMORANDUM BY STEVENS, P.J.E.:                        FILED JANUARY 11, 2018

        This is an appeal from the judgment of sentence entered in the Court

of Common Pleas of Cambria County following Appellant Patrick Leroy Rugg’s

conviction by a jury on the following charges: Counts 1-4-involuntary

deviate sexual intercourse with a child under the age of 13 (“IDSI”), Count

5-trafficking of persons, Count 6-indecent assault, Count 7-endangering the

welfare of a child, and Count 8-corruption of minors.1 This case returns to

us after a panel of this Court vacated Appellant’s initial sentence and

____________________________________________


1
   18 Pa.C.S.A. §§ 3123(b), 3002(a), 3126(a)(7), and 4304(a)(1),
respectively. Concerning Appellant’s conviction for trafficking of persons in
June 2012, effective September 2, 2014, the former Chapter of the Crimes
Code regarding this offense was repealed and replaced with a new Chapter.
See id. § 3001 et seq.; see also id. § 3011(b) (codifying the new offense of
trafficking in minors).


____________________________________
* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
J-S82025-17


remanded for resentencing.2            The trial court resentenced Appellant on

January 6, 2017.

       In the instant appeal, Appellant presents solely a challenge to the

discretionary aspects of his sentence.           After a careful review, we find no

merit to this claim.        However, upon the Commonwealth’s urging, 3 we

determine that the portion of the trial court’s sentencing order that deems

Appellant to be a Sexually Violent Predator (“SVP”) under the Sexual

Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S.A. §§

9799.10-9799.41, is illegal. Therefore, while we affirm Appellant’s judgment

of sentence, we vacate the SVP order and remand for further limited action.

       The relevant facts and procedural history underlying this appeal have

been aptly set forth, in part, by the trial court as follows:

             On June 20, 2012, the Commonwealth charged [Appellant
       with the aforementioned crimes]. The trial court conducted a
       jury trial on June 25[,] June 26[,] and June 27, 2012. The
       Commonwealth presented testimony from numerous witnesses,
       including an eyewitness and the minor victim, Z.B.      N.T.,

____________________________________________


2
  As more fully discussed infra, this Court found the trial court’s initial
imposition of a mandatory minimum sentence under 42 Pa.C.S.A. §
9718(a)(1) to be illegal.
3
  Curiously, the Commonwealth, as opposed to Appellant, raised the SORNA
issue, indicating that this Court “should vacate Appellant’s Sexually Violent
Predator designation.” Commonwealth’s Brief at 14. As this issue relates to
the legality of a defendant’s sentence, even absent the Commonwealth’s
suggestion, this Court may address the issue sua sponte. Commonwealth
v. Butler, 2017 WL 4914155 (Pa.Super. filed 10/31/17).




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J-S82025-17


       6/25/12, pp. 43-75 (testimony of the eyewitness);[4] pp. 85-121
       (testimony of Z.B.).[5] The jury unanimously found [Appellant]
       guilty of the eight counts charged. See N.T., 6/27/12, at 231-
       34.
             On February 26, 2013, the trial court conducted a
       [h]earing to determine if [Appellant] met the definition of a
       [SVP]. By order dated June 21, 2013, the trial court determined
       that[, pursuant to Section 9799.24(e)(3), the Commonwealth
       proved by clear and convincing evidence that] Appellant is a
       [SVP]. [On July 30, 2013, the trial court issued notice that,
       having been convicted of IDSI and indecent assault, and found
       to be a SVP, Appellant was subject to a lifetime registration
       requirement.    Further, on] July 30, 2013, the trial court
       sentenced [Appellant] as follows:
          a. [IDSI] (Counts 1-4): Consecutive sentences of 10
             years   (mandatory    minimum)    to  20   years
             imprisonment on each count;
          b. Trafficking of Persons (Count 5): 24 to 48 months
             imprisonment, concurrent to Count One;
          c. Indecent assault (Count 6): 12 to 24 months
             imprisonment, concurrent to Count One;
          d. Endangering the Welfare of a Child (Count 7): 12 to
             24 months imprisonment, concurrent to Count One;
             and

____________________________________________


4
  The eighty-year-old eyewitness lived next to Appellant, and he was able to
see into Appellant’s bedroom window. N.T., 6/25/12, at 45. He testified
that, on June 10, 2010, as he turned on his air conditioner, he noticed a
naked boy on the bed. Id. at 49. With the assistance of binoculars, he
watched as Appellant fondled and sodomized the boy. The next day, the
eyewitness took photographs of Appellant and the boy for identification
purposes, and he reported the incident to Children and Youth Services. Id.
at 50-53.
5
  The victim, Z.B., who was a pre-adolescent boy, testified that Appellant
was his mother’s best friend, and he used to call him “dad.” Id. at 90-91.
He testified that Appellant sodomized him on more than one occasion,
fondled his private parts, and performed fellatio upon him. Id. at 95-100.




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          e. Corruption of Minors (Count 8): six to 12 months
             imprisonment, concurrent to Count One.
           On August 9, 2013, [Appellant] filed an Optional Post-
       Sentence Motion, which the trial court denied by Order dated
       December 27, 2013. On March 19, 2014, [Appellant] filed his
       first Notice of Appeal.
              On February 19, 2015, [a panel of] the Superior Court [ ]
       affirmed [Appellant’s] convictions, vacated the judgment of
       sentence,      and    remanded       for    resentencing.[6]   See
       Commonwealth v. Rugg, No. 458 WDA 2014 (Pa.Super. filed
       2/19/15) (unpublished memorandum). The Commonwealth and
       [Appellant] filed [C]ross-Petitions for Allowance of Appeal to the
       Pennsylvania Supreme Court on March 23, 2015. By Order
       dated August 25, 2015, the Supreme Court stayed the
       Commonwealth’s        Petition    pending     a    disposition   in
       Commonwealth v. Wolfe, [636 Pa. 37,] 140 A.3d 651 (2016).
       The Supreme Court denied [Appellant’s] Petition for Allowance of
       Appeal on September 29, 2015, and the Commonwealth’s
       Petition on August 26, 2016. The trial court received the record
       on September 15, 2016.
             On January 6, 2017, [following a hearing,] the trial court
       resentenced [Appellant] as follows:
____________________________________________


6
  This Court found no merit to Appellant’s claims that (1) the trial court erred
in conducting a competency hearing in the presence of the jury; (2) the
jury’s verdicts were against the weight of the evidence; (3) the evidence was
insufficient to sustain his conviction for trafficking of persons; and (4) the
trial court erred in determining that Appellant is a sexually violent predator.
However, we concluded that there was merit to Appellant’s claim that the
trial court imposed an illegal sentence when it sentenced Appellant to a
mandatory minimum prison term of ten years under 42 Pa.C.S.A. §
9718(a)(1) on each of his four IDSI convictions. Specifically, we held the
sentences for IDSI were illegal pursuant to Commonwealth v. Wolfe, 106
A.3d 800 (Pa.Super. 2014), which held that the IDSI statutory subsection
under 9718(a)(1) was unconstitutional under Alleyne v. U.S., 133 S.Ct.
2151 (2013). Accordingly, we vacated Appellant’s judgment of sentence and
remanded for resentencing. In light of this later conclusion, we declined to
address Appellant’s discretionary aspects of sentencing claim (namely,
whether the trial court abused its discretion in imposing consecutive
sentences for Counts 1-4).



                                           -4-
J-S82025-17


              a. [IDSI] (Counts 1-4): Consecutive sentences of 10
                 years to 20 years imprisonment on each count;
              b. Trafficking of Persons (Count 5): 24 to 48 months
                 imprisonment, concurrent to Count One;
              c. Indecent Assault (Count 6): 12 to 24 months
                 imprisonment, concurrent to Count One;
              d. Endangering the Welfare of a Child (Count 7): 12
                 to 24 months imprisonment, concurrent to Count
                 One; and
              e. Corruption of Minors (Count 8): six to 12 months
                 imprisonment, concurrent to Count One.
        On January 17, 2017, [Appellant] filed an Optional Post-
        Sentence Motion. The trial court entertained oral argument on
        February 17, 2017. The trial court denied [Appellant’s] Motion
        by Order dated March 3, 2017. On March 31, 2017, [Appellant]
        filed his second Notice of Appeal to the Superior Court. On April
        25, 2017, [Appellant] timely filed a Concise Statement pursuant
        to Pennsylvania Rules of Appellate Procedure 1925(b), setting
        forth one purported error.[7] [On May 26, 2017, the trial court
        filed a responsive Pa.R.A.P. 1925(a) opinion.]

Trial Court Opinion, filed 5/26/17, at 1-3 (citations to record omitted)

(footnotes added) (footnote omitted).

        On appeal, Appellant contends the trial court abused its discretion in

imposing consecutive sentences for the four counts of IDSI (Counts 1-4).

Although Appellant admits that each individual sentence of 10 to 20 years in

prison for IDSI falls within the applicable standard range of the Sentencing

Guidelines, he avers that, due to the consecutive nature of the individual

sentences, his aggregate sentence of 40 to 80 years in prison for IDSI is not

____________________________________________


7
    It was the same issue as is presented in Appellant’s brief.




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J-S82025-17


an individualized sentence but is an overly excessive de facto life sentence.8

He further argues that, in imposing consecutive sentences, the trial court

ignored the dictates of 42 Pa.C.S.A. § 9721(b) by failing to impose a

sentence that was consistent with the protection of the public, the gravity of

the offense as it relates to the impact on the victim and the community, and

Appellant’s rehabilitative needs.

       Appellant admits that he is challenging the discretionary aspects of his

sentence.9     A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right. Commonwealth v. Hunter,

768 A.2d 1136 (Pa.Super. 2001). Prior to reaching the merits of a

discretionary sentencing issue:

       We conduct a four-part analysis to determine: (1) whether
       appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
       and 903; (2) whether the issue was properly preserved at
       sentencing or in a motion to reconsider and modify sentence,
       see [Pa.R.Crim.P. 720]; (3) whether appellant's brief has a fatal
       defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
       question that the sentence appealed from is not appropriate
       under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006) (citations

omitted).

____________________________________________


8
 Appellant notes that, at the time of resentencing on January 6, 2017, he
was thirty-nine years old. Appellant’s Brief at 17.
9
  Relevantly, the trial court stated at the resentencing hearing the following:
“I note specifically that this is not a mandatory minimum sentence in
violation of recent appellate case law.” N.T., 1/6/17, at 12.



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J-S82025-17


      Here, Appellant filed a timely notice of appeal, as well as a timely

post-sentence motion in which he preserved his discretionary aspect of

sentencing claim, and he included a separate Pa.R.A.P. 2119(f) statement in

his brief. However, assuming, arguendo, Appellant presented a substantial

question, thus permitting our review, for the reasons discussed infra,

Appellant is not entitled to relief on his claim.

      It is well-settled that:

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

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa.Super. 2015)

(quotation omitted).

      “Although Pennsylvania’s system stands for individualized sentencing,

the court is not required to impose the ‘minimum possible’ confinement.”

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010) (citation

omitted).   In reviewing the sentence, an appellate court shall have regard

for: (1) the nature and circumstances of the offense and the history and

characteristics of the defendant; (2) the opportunity of the sentencing court

to observe the defendant, including any presentence investigation; (3) the

findings upon which the sentence was based; and (4) the guidelines

promulgated by the commission. See 42 Pa.C.S.A. § 9781(d)(1)–(4).

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J-S82025-17


      A sentence may be found to be unreasonable if it fails to properly

account for these four statutory factors, or if it “was imposed without

express or implicit consideration by the sentencing court of the general

standards applicable to sentencing[.]” Commonwealth v. Walls, 592 Pa.

557, 569, 926 A.2d 957, 964 (2007). These general standards mandate that

a sentencing court impose a sentence “consistent with the protection of the

public, the gravity of the offense as it relates to the impact on the life of the

victim and on the community, and the rehabilitative needs of the

defendant.” 42 Pa.C.S.A. § 9721(b).

      In the instant matter, the record demonstrates that the trial court had

the benefit of a pre-sentence investigation report (“PSI”). N.T., 1/6/17, at

10. We have stated that:

      When imposing a sentence, a court is required to consider the
      particular circumstances of the offense and the character of the
      defendant. . . .Where the sentencing court had the benefit of a
      [PSI], we can assume the sentencing court was aware of
      relevant information regarding the defendant’s character and
      weighed those considerations along with mitigating statutory
      factors. Further, where,[ as here,] a sentence is within the
      standard range of the guidelines, Pennsylvania law views the
      sentence as appropriate under the Sentencing Code.

Moury, 992 A.2d at 171 (quotation marks and quotations omitted).

      In the case sub judice, the record from the resentencing hearing

reveals that, in addition to the PSI, the trial court reviewed the revised

sentencing guidelines.     N.T., 1/6/17, at 5-7.    Moreover, defense counsel

informed the trial court of Appellant’s progress during his time in prison,


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J-S82025-17


noting that he “has been a model inmate[,]” obtained his GED, and

completed Victim Awareness Classes.              N.T., 1/6/17, at 8.   Additionally,

defense counsel reminded the trial court that Appellant has no prior record

and requested the trial court consider Appellant’s rehabilitative needs. Id.

at 9. The trial court gave Appellant the opportunity to make a statement,

and Appellant indicated that he was enrolled in a sex offender program. Id.

at 9-10.

       The Commonwealth informed the trial court that neither the victim

(Z.B.) nor his mother were attending the resentencing hearing because they

felt it would be too traumatizing.10 Id. at 10. However, the Commonwealth

informed the trial court that Z.B.’s mother spoke to the district attorney’s

office prior to the resentencing hearing, and the Commonwealth informed

the trial court of the following:

       Their wishes remain the same [as before].             The longer
       [Appellant] can be incarcerated, the better off they will feel and
       [be] protected. This is a man she entrusted with the care of her
       child and he betrayed all of them. And the Court is fully aware
       of the heinous nature of the facts. The Court is also aware that
       the guidelines encompass the sentence that has already been
       served and we ask that if nothing else that [ ] remains the same.

Id. at 10.

      The trial court then imposed its sentence, indicating the
following:
____________________________________________


10
   The record reveals that Z.B. and his mother appeared near the conclusion
of the proceedings, but there is no indication that they asked to speak. N.T.,
1/6/17, at 16.



                                           -9-
J-S82025-17



            [Appellant], in considering your resentence, I have taken
      into account your age, the information about yourself that you
      gave me previously that was included in a previous [PSI] that I
      considered at your original sentence in 2013, as well as
      testimony of the victim and the victim’s family, both at the trial
      and at the prior sentencing hearing. I have taken into account
      evidence of the circumstances of the offense which were
      established by the verdicts of this Cambria County jury, the facts
      as to your personal background and the circumstances therefore
      are not in dispute.         And I have also considered your
      rehabilitative needs in fashioning this resentence.
             After considering these factors, I find that there is an
      undue risk that during any period of probation or partial
      confinement, you would likely commit another crime. I find that
      you are in need of correctional treatment that can be provided
      most effectively by your total confinement in a state correctional
      institution. I further find any lesser sentence would depreciate
      the seriousness of your crimes. Therefore, I will find a sentence
      of total confinement is proper.
             As the Assistant District Attorney has correctly pointed out,
      in this case the guidelines for the standard minimum range of
      sentence for each of the four felony one counts of [IDSI] call for
      a standard minimum range of sentence of between 72 months
      and 240 months. In other words, a minimum sentence of
      between 6 and 20 years. A sentence of 10 years’ incarceration
      for each offense is less than the midway point in terms of
      severity, but it is believed by this Court to represent an
      appropriate sentence based on all of the factors I have
      considered.

Id. at 10-12.

      Additionally, in explaining the rationale for its sentence, the trial court

relevantly indicated the following in its Pa.R.A.P. 1925(a) opinion:

            In the case at bar, the trial court considered the heinous
      nature of the crimes, Z.B.’s age during the period of
      victimization, [Appellant’s] lack of remorse, and [Appellant’s]
      refusal to acknowledge his guilt.       At [Appellant’s] original
      sentencing, the trial court noted that rehabilitation was unlikely
      because [Appellant] did not acknowledge his affliction; did not

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J-S82025-17


     accept responsibility for his actions; and suffers from pedophilia,
     a lifelong condition.     After a careful review of the original
     sentencing record and new information provided by [Appellant],
     the trial court found that total confinement is necessary because
     there is undue risk that, during probation or partial confinement,
     [Appellant] will commit another crime. The trial court also
     determined that [Appellant] is in need of correctional treatment
     that can be provided most effectively in a state correctional
     institution, and any lesser sentence would depreciate the
     seriousness of the crimes involved.
           The victim, Z.B., and his mother did not speak at
     [Appellant’s] resentencing out of fear that facing [Appellant]
     may re-traumatize Z.B. At [Appellant’s] original sentencing,
     Z.B.’s mother testified as follows:
           Ever since the day we received a phone call from
           Ebensburg [Children & Youth Services], our lives
           have been turned upside down. [Z.B.] was only ten
           years old when [Appellant] took away his youth and
           forced [Z.B.] to deal with adult issues. Since then,
           [Z.B.] has been institutionalized three times in
           various psyche [sic] wards. He’s also been placed in
           a youth home for boys for 28 days. [Z.B.] had
           several behavioral problems to the point of being
           placed in Children’s Adolescent Partial Hospital for
           two years instead of regular school. [Z.B.] is finally
           back on track. He’s back in regular school, he’s
           doing well, but he still struggles with everyday
           activities and he still has trust issues [so] he has
           been placed in emotional learning support classes
           when he is in school. This has not only affected
           [Z.B.], it affected all of us and my family as well.
     N.T., 7/30/13, at 12. The trial court carefully considered the
     factors set forth in Section 9721(b) of the Sentencing Code.
     Additionally, the trial court reviewed [Appellant’s] [PSI] and the
     Sentencing Guideline forms prepared by the Cambria County
     Office of Adult Probation in preparation for [Appellant’s]
     resentencing.
           The trial court sentenced [Appellant] in accordance with
     the Pennsylvania Sentencing Guidelines. . . .[Appellant’s]
     sentence is within the standard minimum range of sentencing.
     Additionally, the egregious nature of the crimes supports the



                                   - 11 -
J-S82025-17


      trial court’s imposition of consecutive sentences on the four
      counts of [IDSI].

Trial Court Opinion, filed 5/26/17, at 4-6 (citations to record omitted).

      We conclude the trial court did not abuse its discretion in resentencing

Appellant and, more specifically, there is no merit to his claim that the trial

court failed to consider the factors set forth in 42 Pa.C.S.A. § 9721(b) or

imposed a non-individualized sentence in imposing consecutive sentences for

IDSI. Further, with regard to Appellant’s contention that the imposition of

consecutive sentences resulted in a de facto life sentence, as the trial court

noted, “[i]n Pennsylvania, the sentencing court has discretion to determine

whether sentences are concurrent or consecutive to other sentences.” Trial

Court Opinion, filed 5/26/17, at 6 (citation omitted).

      An appellant is not entitled to a “volume” discount by having all of his

sentences run concurrently.           Commonwealth v. Hoag, 665 A.2d 1212,

1214 (Pa.Super. 1995).            Here, Appellant’s sentence was            manifestly

reasonable    in   light   of   the    heinous    sexual   abuse   at   issue.    See

Commonwealth v. Treadway, 104 A.3d 597 (Pa.Super. 2014) (holding

that aggregate sentence of 100 to 200 years for various sex crimes

perpetrated by the defendant upon his stepdaughter was not manifestly

excessive given the nature of the crime).

      Although there is no merit to the sole issue raised by Appellant on

appeal, for the reasons discussed infra, we have no choice but to vacate a




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J-S82025-17


portion of Appellant’s judgment of sentence: namely, that portion of the

sentencing order deeming Appellant to be a SVP.

      In Commonwealth v. Muniz, --- Pa. ---, 164 A.3d 1189 (2017), our

Supreme Court held that the registration requirements under SORNA

constitute criminal punishment, thus overturning prior decisions determining

those registration requirements to be civil in nature.     Id.   On October 31,

2017, a panel of this Court held the following:

             [S]ince our Supreme Court has held [in Muniz] that
      SORNA registration requirements are punitive or a criminal
      penalty to which individuals are exposed, then under Apprendi
      [v. New Jersey, 530 U.S. 466 (2000),] and Alleyne [v. United
      States, 133 S.Ct. 2151, 2163 (2013)], a factual finding, such as
      whether a defendant has a “mental abnormality or personality
      disorder that makes [him or her] likely to engage in a predatory
      sexual violent offense[,]” 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.
                                      ***
            [Thus], 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 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.

Commonwealth v. Butler, 2017 WL 4914155, *5-6 (Pa.Super. filed

10/31/17).



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J-S82025-17


       In light of Butler, to which we are bound under the doctrine of stare

decisis, we have no choice but to conclude that the portion of Appellant’s

sentencing order determining him to be an SVP is illegal. See id. Here, the

trial court conducted a SVP hearing and designated Appellant to be an SVP

without making that necessary factual finding beyond a reasonable doubt;

therefore, we are compelled to vacate the trial court’s June 21, 2013, SVP

order, and pursuant to Butler, we remand this case to the trial court for the

sole purpose of issuing the appropriate notice to Appellant under 42

Pa.C.S.A. § 9799.23 that he is required to register for life.11

       SVP Order vacated and case remanded.             Judgment of sentence

affirmed in all other respects. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/11/2018




____________________________________________


11
   42 Pa.C.S.A. § 9799.14(d)(4) provides that a conviction for IDSI is a Tier
III offense for purposes of SORNA. A Tier III offender is required to register
for life. 42 Pa.C.S.A. § 9799.15(a)(3).



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