                               [J-36-2016] [MO: Dougherty, J.]
                        IN THE SUPREME COURT OF PENNSYLVANIA
                                      MIDDLE DISTRICT

A.S.,                                           :   No. 24 MAP 2014
                                                :
                         Appellee               :   Appeal from the Order of the
                                                :   Commonwealth Court dated March 7,
                                                :   2014 at No. 473 MD 2012
                v.                              :
                                                :   ARGUED: March 8, 2016
                                                :
PENNSYLVANIA STATE POLICE,                      :
                                                :
                         Appellant              :

                                     DISSENTING OPINION

JUSTICE TODD                                             DECIDED: August 15, 2016
        As the majority recognizes, this appeal is primarily a reconsideration of the issue

this Court reviewed, but could not authoritatively resolve, in Commonwealth v. Gehris,

54 A.3d 862 (Pa. 2012): the meaning of Megan's Law II's provision that "[a]n individual

with two or more convictions of any of the offenses set forth in" 42 Pa.C.S. § 9795.1(a)

"shall be subject to lifetime registration" as a sexual offender.          42 Pa.C.S. §

9795.1(b)(1).        I authored the Opinion in Support of Affirmance ("OISA") in Gehris,

expressing the view that the foregoing provision clearly and unambiguously provides

that any individual who accrues multiple convictions for offenses set forth in Section

9795.1(a) is subject to lifetime registration as a sexual offender. Gehris, 54 A.3d at 862

(OISA).    Then-Chief Justice Castille authored the Opinion in Support of Reversal

("OISR") in Gehris, reasoning that this provision, read in light of Megan's Law II's

remaining provisions, incorporates a "recidivist philosophy" and, therefore, provides that

only an individual who is convicted of one or more offenses set forth in Section

9795.1(a), and subsequently reoffends and is convicted again of one or more offenses

set forth in Section 9795.1(a), is subject to lifetime registration as a sexual offender.
Gehris, 54 A.3d at 868 (OISR).        Because I continue to view the salient statutory

provisions as clear and unambiguous, and because, in my view, Section 9795.1

incorporates no such recidivist philosophy, the analyses of the OISR in Gehris and the

majority hereinabove notwithstanding, I respectfully dissent.

       As I expressed in my OISA in Gehris, in my view, Section 9795.1(b)(1) clearly

and unambiguously provides that any individual who accrues multiple convictions of

offenses set forth in 42 Pa.C.S. § 9795.1(a) is subject to lifetime registration as a sexual

offender:

              The plain language of Section 9795.1(b)(1) specifies: “The
              following individuals shall be subject to lifetime registration:
              (1) An individual with two or more convictions of any of the
              offenses set forth in subsection (a).” This language, when
              viewed in accordance with its commonly understood and
              ordinary meaning, requires any individual who is convicted
              two or more times of the particular offenses set forth in
              subsection (a) to register for life. Relevant to the question of
              whether the legislature intended to require lifetime
              registration in situations where the multiple convictions
              stemmed from acts which were part of one criminal episode,
              I deem the legislature, through the use of the unadorned
              language, “[a]n individual with two or more convictions of any
              of the offenses set forth in subsection (a),” to have elected
              not to require any particular sequential or temporal ordering
              of the multiple convictions in order for the lifetime registration
              requirements to apply. Rather, the legislature simply
              mandated that, at the point in time at which a defendant
              acquires two or more convictions for specified sexual
              offenses against children, the registration requirement is
              triggered.
Gehris, 54 A.3d at 866 (OISA). The majority recognizes that this provision's language,

at least in isolation, provides as much.        See Majority Opinion at 16 (noting that

"oftentimes the meaning — or ambiguity — of certain words or phrases may only

become evident when placed in context"). Yet, the majority reasons that this language,



                            [J-36-2016] [MO: Dougherty, J.] - 2
considered in light of the remainder of Megan's Law II's provisions, as well as its

purported "recidivist philosophy," among other factors, is ambiguous, and, indeed,

provides that only an individual who is convicted of one or more offenses set forth in

Section 9795.1(a), subsequently reoffends, and is convicted again of one or more

offenses set forth in Section 9795.1(a), is subject to lifetime registration as a sexual

offender. See Majority Opinion at 12-19. I remain unpersuaded.

       First, the "core of the [Gehris] OISR's ensuing analysis," which the majority

adopts today, is as follows:

                      [W]e are satisfied that section 9795.1, which sets forth
              a graduated scheme for Megan’s Law registration, similar in
              nature to the graduated schemes discussed in this Court’s
              prior case law, encompasses the recidivist philosophy in
              addition to its perhaps more obvious goals of public
              protection and deterrence. Of course, registration may not
              be punitive for purposes of the constitutional protections
              afforded to offenders, as this Court concluded in
              [Commonwealth v.] Williams, [832 A.2d 962 (Pa. 2003)].
              Nevertheless, registration obviously has serious and
              restrictive consequences for the offender, including
              prosecution if the requirement is violated. Registration can
              also affect the offender’s ability to earn a livelihood, his
              housing arrangements and options, and his reputation. See
              also Fross v. County of Allegheny, . . . 20 A.3d 1193 ([Pa.]
              2011).

                     The “two or more convictions” language in subsection
              (b) seems clear and unambiguous on the surface. But if
              Section 9795.1 is viewed as a whole and the General
              Assembly’s legislative findings and declaration of policy at
              42 Pa.C.S. § 9791 are read closely, it is clear that the
              primary concern is with sexually violent predators.
              Considering the nine subsections in Section 9791, the term
              “sexually violent predator” appears nine times, particularly in
              the provision addressing repeat offenders: “sexually violent
              predators pose a high risk of engaging in further offenses
              even after being released from incarceration or commitments



                           [J-36-2016] [MO: Dougherty, J.] - 3
              and that protection of the public from this type of offender is
              a paramount governmental interest.”            42 Pa.C.S. §
              9791(a)(2).     References to nonviolent offenders are
              comparatively few, just four in all, and two of these pertain
              specifically to recent amendments accounting for the
              circumstance of released “offenders” who may be homeless
              or without a “fixed place of habitation.” See 42 Pa.C.S. §
              9791(a)(1) & (b)(3); see also Commonwealth v. Wilgus, 40
              a.3d 1201 (Pa. 2012).

                      It is evident that in drafting Section 9795.1, the
              General Assembly meant to set up a graduated registration
              scheme. In this tiered approach, more serious (primarily
              violent) offenders and “true” recidivists who squander a
              given opportunity to reform are understandably subject to
              lifetime requirements.       By contrast, lesser, first-time
              offenders, especially those who are nonviolent, receive an
              opportunity for rehabilitation and eventual freedom from the
              requirements if they “stay on the path” for ten years.

                                            * * *

                      [W]e would conclude that Section 9795.1 embodies
              the recidivist philosophy and reflects a belief that first-time
              and lesser offenders are capable of reform and rehabilitation
              if given an opportunity to do so under the still-punitive aegis
              of relatively lighter discipline, as well as the threat of harsher
              treatment next time, should there be a next time.
Majority Opinion at 13-15 (quoting Gehris, 54 A.3d at 878-79 (OISR)) (alterations

original). This rationale rests its conclusion on essentially two premises:

              (1) Section 9795.1 contains a "graduated scheme" and is at
                  least somewhat punitive in nature, and therefore
                  analogous to the statutes in Commonwealth v.
                  Dickerson, 621 A.2d 990 (Pa. 1993), Commonwealth v.
                  Shiffler, 879 A.2d 185 (Pa. 2005), Commonwealth v.
                  McClintic, 909 A.2d 1241 (Pa. 2006), and
                  Commonwealth v. Jarowecki, 985 A.2d 955 (Pa. 2009),
                  which contain similarly graduated schemes and are
                  punitive in nature, and which this Court has interpreted




                            [J-36-2016] [MO: Dougherty, J.] - 4
                 as incorporating a "recidivist philosophy" requiring
                 conviction, re-offense, and subsequent conviction; and

              (2) The legislative findings incorporated into Megan's Law
                  II's provisions, its statement of purpose, and their oft-
                  repeated use of the term "sexually violent predator" as
                  compared to their references to "nonviolent offenders"
                  evidence a primary concern with recidivists.
In my view, neither premise leads to the majority's conclusion.

       First, as detailed in my OISA in Gehris, the language of Section 9795.1 is

significantly distinct from the language of the statutes at issue in Dickerson and its

progeny:

              [T]he specific nature of the language employed in the
              statutes at issue in [Dickerson, Shiffler, McClintic, and
              Jarowecki]—i.e. “[w]here the person had at the time of the
              commission of the current offense previously been
              convicted,” in the case of 42 Pa.C.S.A. (s) 9714 (a)(2)
              (emphasis added), and “second or subsequent offense,”
              in 18 Pa.C.S. § 6312(d)(2) (emphasis added)—implies a
              requirement that there be a separation in time between
              imposition of the successively greater sanctions in order to
              give the individual a chance to change his or her behavior in
              response to the lesser sanction. By contrast, as noted
              above, the language of Section 9795.1(b)(1) has no such
              language suggesting temporal separation is required
              between the commission of the enumerated offenses for the
              lifetime registration requirement to apply.
Gehris, 54 A.3d at 866 (OISA) (emphasis original). Thus, insofar as the language of

Section 9795.1 is not analogous, it is improper for this Court to treat it as such. See 1

Pa.C.S. § 1921(b).

       Moreover, this Court has previously held that the purpose of Section 9795.1 is

non-punitive, further weakening the analogy to the punitive statutes at issue in

Dickerson and its progeny, as well as their underlying purpose – punishing with

increasing force in an effort to avoid recidivism. As I stated in Gehris:



                            [J-36-2016] [MO: Dougherty, J.] - 5
                [T]he primary purpose of the registration requirement is not
                to punish an individual convicted of sexual offenses, but,
                instead, registration is mandated for the protection of the
                public. See [Commonwealth v.] Williams, 574 Pa. [487,] 504
                832 A.2d [962,] 972 [(2003)] (“[T]he legislature’s intent in
                requiring offenders to register with the State Police regarding
                their whereabouts was not retribution; . . . rather its purpose
                was to effectuate, through remedial legislation, the non-
                punitive goal of public safety.”) Consequently, unlike the
                “three strikes” sentencing statute at issue in [Dickerson],
                [Shiffler], and [McClintic] and the mandatory sentencing for
                possession of child pornography at issue in [Jarowecki],
                which imposed successively greater levels of penal
                discipline for each successive conviction for the same type
                of crime in order to dissuade an individual from repeating
                that criminal conduct in the future, the principal objective of
                the registration requirement is not to alter the convicted
                individual’s behavior through punishment.
Gehris, 54 A.3d at 866-67 (OISA).

       Bearing these distinctions in mind, the only remaining similarity between Megan’s

Law II and the statutes at issue in Dickerson and its progeny relied upon by the majority

is that each possesses a “graduated scheme” – i.e., each imposes different levels of

"punishment" corresponding to increasingly severe offenses. Yet, as I explained in my

Gehris OISA, in light of its distinct text and purpose, it is more appropriate to view the

“graduated scheme” in Section 9795.1 as estimating that persons who frequently

commit sexual offenses are more dangerous to the public, requiring lengthier

registration:

                Although the overall structure of Section 9795.1 conditions
                its registration scheme, in part, on the nature of particular
                sexual offenses, since lifetime registration is required of
                those who commit the arguably more serious offenses
                enumerated in Section 9795.1(b)(2), I find it significant that
                the legislature also chose to impose the very same lifetime
                registration requirement for those convicted of two or more
                of any of the offenses enumerated in Section 9795.1(a)(1),


                             [J-36-2016] [MO: Dougherty, J.] - 6
             the vast majority of which are offenses against children.
             This, from my perspective, evidences a deliberate legislative
             judgment, consistent with its objective of protecting public
             safety, to make the differing length of registration
             requirements dependent not only on the nature of the
             specific sexual offenses for which an individual is convicted,
             but, also, on the occurrence of a multiplicity of certain types
             of offenses, particularly those committed against children. In
             my view, this reflects a considered determination by the
             legislature that, in order to protect the safety and general
             welfare of the public, the frequency with which a convicted
             defendant is determined to have engaged in certain types of
             prohibited conduct with children is a particularly important
             factor in determining whether he or she should be subject to
             lifetime registration.
Gehris, 54 A.3d at 867-68 (OISA).1

1
   Moreover, even assuming Section 9795.1's increasing periods of registration are
directed at increasingly serious offenses, such proposition does not necessarily lead to
the conclusion that Section 9795.1(b)(1) applies solely to recidivists. Under such a
view, the General Assembly would necessarily have to deem an individual who lures a
child into a motor vehicle, kidnaps the child, and forces the child to participate in
prostitution and child pornography – an individual who, under the majority's
interpretation of Section 9795.1(b)(1), need only register as a sexual offender for 10
years – as having committed a less serious offense than, for example, an individual
who, for example, is convicted of possessing child pornography and subsequently
reoffends.
        In response, the majority contends this illustration is inapt because the
aforementioned offender may well be determined to be a sexually violent predator
subject to lifetime registration. Majority Opinion at 15 n.11. Furthermore, Justice
Donohue, in her concurrence, rejects this position because a "serial, violent sex
offender, who happens to evade prosecution in between the commission of his criminal
acts" is likely to be deemed a sexually violent predator subject to lifetime registration
pursuant to Section 9795.1(b)(3). Concurring Opinion (Donohue, J.) at 4-5. The
concurrence reasons that the classification process and the imposition of lifetime
registration for sexually violent predators is a "safeguard" consistent with the statute's
recidivist philosophy subjecting "more serious (primarily violent) offenders and 'true'
recidivists who squander a given opportunity to reform." Id. at 4-5.
        In my view, the concurrence's reliance on this "safeguard" does not account for
the Commonwealth's significant evidentiary burden necessary to classify offenders as
sexually violent predators. See Williams, supra; 42 Pa.C.S. §§ 9792, 9795.1, 9795.4
(continuedN)

                           [J-36-2016] [MO: Dougherty, J.] - 7
       Turning to the majority's view that Section 9795.1 is ambiguous in light of

Megan’s Law II’s emphasis on protecting the public from sexually violent predators, I

first note that the majority does not explain how Section 9795.1(b)(1)’s language

acquires additional potential meanings in light of those provisions. Moreover, I find the

majority's analysis on this point, insofar as it compares the number of times the term

“sexually violent predator” appears in the salient statutory provisions to the number of

references to nonviolent offenders, unpersuasive as an indicator that the General

Assembly was primarily concerned with protecting the public from recidivists who have

failed to reform after conviction as opposed to individuals who engage in multiple sex

crimes.

       I am likewise unpersuaded by the majority's supplemental analysis buttressing

the Gehris OISR’s conclusion that Section 9795.1(b)(1) is ambiguous.               First, the

majority notes the longstanding principle that language must be viewed in the context of

a statute as a whole, that neither the OISA or OISR in Gehris directly cited this principle,

and that the OISR’s approach is “consonant with” it. See Majority Opinion at 15-16.

Although I do not disagree with the majority that words must be considered in context,

the majority does not explain how Section 9795.1(b)(1)’s language becomes

ambiguous in context.

       The majority next seeks to support its finding that Section 9795.1(b)(1) is

ambiguous by reference to “[t]he fact that it never occurred to those in the trenches” –


(Ncontinued)
(2000). Moreover, insofar as both violent and non-violent one-time offenders, multiple
offenders who do not happen to be apprehended, and those the majority and
concurrence refer to as "true" recidivists, are all subject to assessment and potential
classification as sexually violent predators, I do not view the assessment process and
potential lifetime registration as consistent with a particular legislative concern for "true"
recidivists.



                            [J-36-2016] [MO: Dougherty, J.] - 8
i.e. the defendant, his counsel, the Commonwealth, and the court – “that a first-time,

non-violent and non-SVP offender could be subject to anything but the lower-tier period

of registration,” reasoning that such fact “provides some further measure of support to

the conclusion that the provision, considered in context, is at least reasonably amenable

to multiple interpretations.” Id. at 17. In my view, the mere fact that others – even

members of the bench and bar – have adopted what amounts to a misinterpretation of a

statute – should not bear on the discrete legal question of whether its text is reasonably

susceptible to such interpretation.2

       Finally, the majority reasons that “there is some validity in the point made in the

dissent below that it would be absurd and unreasonable if a single act, giving rise to a

single prosecution yielding two convictions for overlapping predicate offenses, subjected

an offender to lifetime registration.” Id. at 18. I disagree. The enactment of statutes

criminalizing (or requiring registration for) “overlapping predicate offenses” arising from

one act may also be viewed as evidencing a legislative judgment that a single act may

create distinct harms or, as salient here, future risks.

       In closing, I recognize that the appellant in this case is not the typical offender to

whom sexual offender registration requirements apply. Appellant and the victim herein

were engaged in a consensual and legally permissible sexual relationship when

Appellant solicited and created the illegal pornographic images that give rise to his

2
   The majority also considers, but does not definitively resolve, whether Section
9795.1(b)(1) is penal in nature, requiring application of the rule of lenity which mandates
strict construction of statutes in a defendant’s favor. See Majority Opinion at 17.
Although I rejected this approach as inconsistent with the statute’s remedial purpose in
my OISA in Gehris, see Gehris, 54 A.3d at 865-66 (OISA), insofar as the majority does
not rest its decision today on application of that rule, I think it unnecessary to presently
repeat that view in toto. I do note, however, that an unambiguous statute is capable of
only one reasonable interpretation, and, thus, is not capable of, much less in need of,
strict or expansive construction. See Oliver, supra.



                            [J-36-2016] [MO: Dougherty, J.] - 9
convictions. Nevertheless, it is this Court's duty to consider the proper interpretation of

Section 9795.1 not solely as it applies to the parties herein, but as it applies to future

parties in cases across the Commonwealth.

       For these reasons, I respectfully dissent.




                          [J-36-2016] [MO: Dougherty, J.] - 10
