J-S25032-20

                                   2020 PA Super 206

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    LEWIS A. MANZANO                           :
                                               :
                       Appellant               :       No. 895 MDA 2019

         Appeal from the Judgment of Sentence Entered April 26, 2019
             In the Court of Common Pleas of Cumberland County
             Criminal Division at No(s): CP-21-CR-0000904-2018

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    LEWIS A. MANZANO                           :
                                               :
                       Appellant               :       No. 901 MDA 2019

         Appeal from the Judgment of Sentence Entered April 26, 2019
             In the Court of Common Pleas of Cumberland County
             Criminal Division at No(s): CP-21-CR-0000776-2018


BEFORE: LAZARUS, J., DUBOW, J., and KING, J.

OPINION BY KING, J.:                                   FILED AUGUST 21, 2020

        Appellant, Lewis A. Manzano, appeals from the judgments of sentence

entered in the Cumberland County Court of Common Pleas, following his nolo

contendere pleas to one count each of rape of a child and aggravated indecent

assault of a child, and three counts of indecent assault of a child.1 We affirm.



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1   18 Pa.C.S.A. §§ 3121(c); 3125(b); and 3126(a)(7), respectively.
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       The relevant facts and procedural history of this case are as follows. On

January 18, 2019, Appellant entered a negotiated plea of nolo contendere at

docket No. CP-21-CR-0000776-2018, to one count of rape of a child, and at

docket No. CP-21-CR-0000904-2018, to one count of aggravated indecent

assault of a child and three counts of indecent assault of a child. Appellant’s

convictions stem from sexual offenses he committed between December 22,

2017 and February 21, 2018. Pursuant to the terms of the plea bargain, the

parties agreed on a minimum sentence between 11 and 15 years’

imprisonment (with the maximum to be decided by the court), that Appellant

would be subject to the registration requirements under Revised Subchapter

H of the Sexual Offender Registration and Notification Act (“SORNA II”)2 and

register as a Tier III offender, and Appellant would undergo an evaluation by


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2 Following Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017)
(plurality), cert. denied, ___ U.S. ___, 138 S.Ct. 925, 200 L.Ed.2d 213 (2018)
and Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super. 2017) (“Butler
I”), rev’d, ___ Pa. ___, 226 A.3d 972 (2020) (“Butler II”), the Pennsylvania
General Assembly enacted legislation to amend SORNA I. See Act of Feb. 21,
2018, P.L. 27, No. 10 (“Act 10”). Act 10 amended several provisions of SORNA
I, and also added several new sections found at 42 Pa.C.S.A. §§ 9799.42,
9799.51-9799.75. In addition, the Governor of Pennsylvania signed new
legislation striking the Act 10 amendments and reenacting several SORNA I
provisions, effective June 12, 2018. See Act of June 12, 2018, P.L. 1952, No.
29 (“Act 29”). Through Act 10, as amended in Act 29 (collectively, SORNA
II), the General Assembly split SORNA I’s former Subchapter H into a Revised
Subchapter H and Subchapter I. Subchapter I addresses sexual offenders
who committed an offense on or after April 22, 1996, but before December
20, 2012. See 42 Pa.C.S.A. §§ 9799.51-9799.75. Subchapter I contains less
stringent reporting requirements than Revised Subchapter H, which applies to
offenders who committed an offense on or after December 20, 2012. See 42
Pa.C.S.A. §§ 9799.10-9799.42.

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the Sexual Offender Assessment Board (“SOAB”) to determine if he satisfied

the criteria for designation as a sexually violent predator (“SVP”).

      On April 5, 2019, Appellant filed a motion for stay of his SVP

determination pending the Supreme Court’s review of Butler I. Appellant

also filed a motion to declare his lifetime registration requirements under

SORNA II unconstitutional and to strike those requirements from his sentence,

relying on decisions from the Chester County and Montgomery County Court

of Common Pleas, which were pending before the Pennsylvania Supreme

Court at that time. See Commonwealth v. Torsilieri, 37 MAP 2018, and

Commonwealth v. Lacombe, 35 MAP 2018.

      On April 9, 2019, the court denied Appellant’s motions.          Appellant

proceeded to sentencing on April 26, 2019. Following an evaluation from the

SOAB, the court designated Appellant a SVP under Revised Subchapter H.

See 42 Pa.C.S.A. § 9799.24. Additionally, the court sentenced Appellant to

an aggregate 15 to 30 years’ imprisonment, plus 51 years of probation.

      Appellant timely filed post-sentence motions on May 6, 2019. Among

other things, Appellant again requested a stay of his registration requirements

and SVP designation in light of Butler I, Torsilieri, and Lacombe, which

remained pending before the Supreme Court.         The Commonwealth filed a

response on May 20, 2019, and the court denied Appellant’s post-sentence

motions on May 23, 2019.

      Appellant timely filed notices of appeal at each underlying trial court


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docket on June 4, 2019.3 On June 10, 2019, the court ordered Appellant to

file concise statements of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b), which Appellant timely filed on June 28, 2019. On July 24, 2019,

this Court consolidated the appeals sua sponte.4

       Appellant raises two issues for our review:

          Did the court err when it proceeded with the current [SVP]
          assessment in light of [SVP designations] being declared
          unconstitutional by [Butler I]?

          Did the court err when it required [Appellant] to register as
          a sex offender under [Revised] Subchapter H of chapter 97
          of the Judicial Code, because sexual offender registration is
          unconstitutional?

(Appellant’s Brief at 3).

       In his first issue, Appellant asserts that in Butler I, this Court held that

a designation of SVP status under SORNA I violates the federal and state

constitutions, because SVP status increases the criminal penalty to which a

defendant is exposed without the factfinder making necessary factual findings


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3 Appellant included both underlying trial court docket numbers on each notice
of appeal, in violation of Commonwealth v. Creese, 216 A.3d 1142
(Pa.Super. 2019). Nevertheless, this Court has recently overruled Creese to
the extent that it required the Superior Court to quash appeals when an
appellant files multiple notices of appeal and each notice of appeal lists all of
the underlying trial court docket numbers.           See Commonwealth v.
Johnson, ___ A.3d ___, 2020 PA Super 164 (filed July 9, 2020) (en banc).
Thus, Appellant’s notices of appeal are properly before us.

4On July 27, 2020, this Court issued an order staying disposition of this case
pending this Court’s en banc disposition in Commonwealth v. Albright, 517
MDA 2019. In light of this Court’s recent order decertifying Albright for en
banc reargument, we now lift the stay and proceed to address this appeal.

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beyond a reasonable doubt.      Appellant argues that the SVP assessment

provision of Revised Subchapter H in SORNA II contains the same erroneous

“clear and convincing” evidence language, instead of requiring the relevant

fact-finding to be decided beyond a reasonable doubt. In light of Butler I,

Appellant claims the SVP procedure in Revised Subchapter H of SORNA II

could be valid only if the Supreme Court declared that Revised Subchapter H

is not punitive. Appellant insists the registration requirements under Revised

Subchapter H are punitive. Appellant concludes the court erred by proceeding

with his SVP assessment after Butler I, and this Court should vacate and

remand for resentencing without Appellant’s SVP designation. We disagree.

      Appellant purports to challenge the legality of his sentence, which is a

question of law. Therefore, our standard of review is de novo, and our scope

of review is plenary.   Commonwealth v. Hawkins, 45 A.3d 1123, 1130

(Pa.Super. 2012).

      In Butler I, this Court held that the provision of SORNA I requiring a

court to designate a defendant a SVP by clear and convincing evidence violates

the federal and state constitutions because it increases a defendant’s criminal

penalty without the fact-finder making necessary factual findings beyond a

reasonable doubt.    See Butler I, supra.      While Appellant’s appeal was

pending, however, the Pennsylvania Supreme Court reversed Butler I. See

Butler II, supra. Initially, the Butler II Court explained:

         …SVPs are different from the non-SVP SORNA registrants at


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          issue in Muniz[5] due to heightened public safety concerns
          based on the determination SVPs have “a mental
          abnormality or personality disorder that makes the
          individual likely to engage in predatory sexually violent
          offenses.” 42 Pa.C.S.A. § 9799.12. Therefore, a simple
          extrapolation from the analysis in Muniz is insufficient to
          determine whether the [registration, notification, and
          counseling] requirements [applicable to SVPs] constitute
          criminal punishment.

Butler II, supra at ___, 226 A.3d at 987.

       In deciding whether the provisions of Revised Subchapter H applicable

to SVPs were punitive, the Court explained:

          We first consider whether the General Assembly’s “intent
          was to impose punishment, and, if not, whether the
          statutory scheme is nonetheless so punitive either in
          purpose or effect as to negate the legislature’s nonpunitive
          intent.” If we find the General Assembly intended to enact
          a civil scheme, we then must determine whether the law is
          punitive in effect by considering the Mendoza-Martinez[6]
          factors.    We recognize only the “clearest proof” may
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5 In Muniz, our Supreme Court held that the registration provisions of SORNA
I were punitive, such that application of those provisions to offenders who
committed their crimes prior to SORNA I’s effective date violated ex post facto
principles. See Muniz, supra.

6 Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-
68, 9 L.Ed.2d 644 (1963) (delineating seven-factor test as framework for
determining whether statute is so punitive as to negate legislature’s intention
to identify scheme as civil or regulatory: “[w]hether the sanction involves an
affirmative disability or restraint, whether it has historically been regarded as
a punishment, whether it comes into play only on a finding of scienter,
whether its operation will promote the traditional aims of punishment—
retribution and deterrence, whether the behavior to which it applies is already
a crime, whether an alternative purpose to which it may rationally be
connected is assignable for it, and whether it appears excessive in relation to
the alternative purpose assigned are all relevant to the inquiry…”) (internal
footnotes omitted).



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          establish that a law is punitive in effect. Furthermore, in
          determining whether a statute is civil or punitive, we must
          examine the law’s entire statutory scheme.

Id. at ___, 226 A.3d at 987 (quoting Muniz, supra at 732, 164 A.3d at 1208).

       Concluding the stated purpose of Revised Subchapter H is non-punitive,7

the Court next evaluated the Mendoza-Martinez factors. Butler II, supra

at ____, 226 A.3d at 988-92.

       In balancing these factors, the Court explained:

          Although we recognize the [registration, notification, and
          counseling] requirements impose affirmative disabilities or
          restraints upon SVPs, and those requirements have been
          historically regarded as punishment, our conclusions in this
          regard are not dispositive on the larger question of whether
          the statutory requirements constitute criminal punishment.
          This is especially so where the government in this case is
          concerned with protecting the public, through counseling
          and public notification rather than deterrent threats, not
          from those who have been convicted of certain enumerated
          crimes, but instead from those who have been found to be
          dangerously mentally ill. Under these circumstances, and
          also because we do not find the [registration, notification,
          and counseling] requirements to be excessive in light of the
          heightened public safety concerns attendant to SVPs, we
          conclude the [registration, notification, and counseling]
          requirements do not constitute criminal punishment.

Id. at ___, 226 A.3d at 992. Therefore, the Court determined that “the

procedure for designating individuals as SVPs under Section 9799.24(e)(3) is




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7See 42 Pa.C.S.A. § 9799.11(b)(2) (stating Revised Subchapter H “shall not
be construed as punitive”).



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not subject to the requirements of Apprendi and Alleyne[8] and remains

constitutionally permissible.” Id. at ___, 226 A.3d at 976.

       Instantly, in light of the Supreme Court’s decision in Butler II, we

conclude that because SVP adjudication is not criminal punishment, the trial

court did not err in designating Appellant a SVP under SORNA II. See id. See

also Commonwealth v. Groner, ___ A.3d ___, ___, 2020 PA Super 124

(filed May 27, 2020) (holding: “In light of our Supreme Court’s decision in

Butler II, we conclude SORNA II’s [registration, notification, and counseling]

requirements for SVPs—essentially unchanged from those in SORNA [I]—are

likewise non-punitive, such that its procedural framework for designating SVPs

by clear and convincing evidence” is constitutionally sound). Thus, Appellant’s

first issue merits no relief.

       In his second issue, Appellant argues Revised Subchapter H is

unconstitutional because it (a) creates an irrebuttable presumption of

dangerousness in violation of the right to reputation protected by the

Pennsylvania Constitution; (b) increases punishment based on facts found by

the legislature as opposed to a jury in violation of Apprendi and Alleyne; (c)

creates an illegal sentence by requiring registration for a period in excess of

the maximum term of incarceration; (d) is excessive under the U.S. and



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8 See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d
435 (2000) and Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186
L.Ed.2d 314 (2013).

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Pennsylvania Constitutions; and (e) violates separation of powers principles.

For these reasons, Appellant concludes this Court must vacate his registration

requirements. We disagree.

       To begin:

          When an appellant challenges the constitutionality of a
          statute, the appellant presents this Court with a question of
          law. See Commonwealth v. Atwell, 785 A.2d 123, 125
          (Pa.Super. 2001) (citation omitted). Our consideration of
          questions of law is plenary. See id., 785 A.2d at 125
          (citation omitted).      A statute is presumed to be
          constitutional and will not be declared unconstitutional
          unless it clearly, palpably, and plainly violates the
          constitution. See Commonwealth v. Etheredge, 794
          A.2d 391, 396 (Pa.Super. 2002) (citations omitted). Thus,
          the party challenging the constitutionality of a statute has a
          heavy burden of persuasion. See id., 794 A.2d at 396
          (citation omitted).

Commonwealth v. Howe, 842 A.2d 436, 441 (Pa.Super. 2004).

       Significantly, during the pendency of this appeal, our Supreme Court

issued its decisions in Torsilieri and Lacombe.       See Commonwealth v.

Torsilieri, ___ Pa. ___, ___ A.3d ___, 2020 WL 3241625 (filed June 16,

2020). See also Commonwealth v. Lacombe, ___ Pa. ___, ___ A.3d ___,

2020 WL 4150283 (filed July 21, 2020).9



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9 In Lacombe, our Supreme Court held that Subchapter I of SORNA II is
nonpunitive and does not violate the constitutional prohibition against ex post
facto laws. As Lacombe applies only to Subchapter I, and Appellant’s
registration requirements arise under Revised Subchapter H, Lacombe is not
applicable to Appellant’s claims and we need not discuss it further. To the
extent Appellant suggests that Lacombe dealt with Revised Subchapter H, he
is mistaken. See Lacombe, supra.

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      In Torsilieri, our Supreme Court addressed the constitutionality of the

provisions of Revised Subchapter H that are not applicable to SVPs.             See

Torsilieri, supra at *1 n.2 (reiterating holding in Butler II that registration,

notification, and counseling requirements applicable to SVPs do not constitute

criminal   punishment     and     therefore     SVP   designation   procedure    is

constitutionally permissible; as Butler II involves registration provisions

related to SVPs, it is not relevant to defendant, who was not designated SVP).

Specifically, at the post-sentence motion stage of litigation, the defendant had

challenged his reporting requirements under Revised Subchapter H as

violating his due process rights under the Pennsylvania Constitution.           The

defendant expressly challenged the presumption in SORNA II that all sex

offenders are dangerous and pose a high risk of recidivism, necessitating

registration and notification procedures to protect the public from recidivist

sex offenders.    The defendant further claimed the presumption was not

supported by current research and threatens public safety by preventing the

re-integration   of   offenders   as   law-abiding     citizens.    Although    the

Commonwealth argued that a post-sentence motion hearing was not the

proper forum to adjudicate a challenge to the constitutionality of a statute,

the trial court permitted the defendant to introduce affidavits and supporting

documents of three experts concluding that sex offenders generally have low

recidivism rates and questioning the effectiveness of sex offender registration

systems. The Commonwealth did not offer any rebuttal expert testimony or


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documents regarding the defendant’s expert witnesses. Id. at *2-*3.

      The trial court declared the provisions of Revised Subchapter H

applicable to the defendant unconstitutional based largely on the scientific

evidence the defendant had advanced at the hearing.              The trial court

concluded that the registration and notification provisions of Revised

Subchapter H violated the defendant’s right to due process by impairing his

right to reputation through utilization of an irrebuttable presumption and

because the statutory system failed to provide requisite notice and opportunity

to be heard. The trial court further held Revised Subchapter H violated the

separation of powers doctrine because it removed the trial court’s ability to

fashion an individualized sentence. Finally, the trial court held that Revised

Subchapter    H   violated   Alleyne/Apprendi    by   allowing    for   enhanced

punishment neither determined by the fact-finder nor premised upon proof

beyond a reasonable doubt. Id. at *3. Consequently, the trial court vacated

the defendant’s sentence to the extent that it required compliance with

Revised Subchapter H’s registration provisions. Id.

      On appeal, our Supreme Court initially rejected the Commonwealth’s

argument that the trial court lacked authority to consider the constitutionality

of Revised Subchapter H.       Id. at *11 (stating: “[A] viable challenge to

legislative findings and related policy determinations can be established by

demonstrating a consensus of scientific evidence where the underlying

legislative policy infringes constitutional rights.   In such cases, it is the


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responsibility of the court system to protect the rights of the public”). Next,

the Supreme Court acknowledged that, based on the evidence the

defendant had presented in the trial court, he posed “colorable

constitutional challenges” to Revised Subchapter H’s registration and

notification provisions based upon his asserted refutation of two critical

legislative determinations: (1) that all sex offenders pose a high risk of

recidivism; and (2) that the tier-based registration system of Revised

Subchapter H protects the public from the alleged danger of recidivist sex

offenses. Id.

      Notwithstanding the defendant’s proffered evidence, however, the Court

decided it was unable to conclude based upon the record before it whether the

defendant had sufficiently undermined the validity of the legislative findings

supporting Revised Subchapter H’s registration and notification provisions,

especially in light of the Commonwealth’s contradictory scientific evidence

produced on appeal. Noting that “it is not the role of an appellate court to

determine the validity of the referenced studies based on mere citations rather

than allowing the opportunity for the truths to develop through a hearing on

the merits of the evidence,” the Court remanded to allow the parties to

address whether a consensus has developed to call into question the relevant

legislative policy decisions impacting sex offenders’ constitutional rights. Id.

at *12.

      Further, in examining the trial court’s analysis of the irrebuttable


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presumption doctrine and the Mendoza-Martinez factors, the Court

emphasized that the trial court had relied heavily upon its review of the

defendant’s proffered scientific evidence.     Id. at *14-*20.       The Court

reiterated that although the defendant presented a colorable argument that

the General Assembly’s factual presumptions have been undermined by recent

scientific studies, the Court was unable to affirm the court’s conclusions

“because the evidence of record does not demonstrate a consensus of

scientific evidence…to find a presumption not universally true…, nor the

‘clearest proof’ needed to overturn the General Assembly’s statements that

the provisions are not punitive, which we have noted requires more than

merely showing disagreement among relevant authorities.”           Id. at *21.

Accordingly, the Court remanded so the trial court could re-evaluate the

defendant’s proffered evidence weighed against contrary evidence, if any

exists. Id.

      Instantly, we initially note that Appellant fails to articulate what

registration requirements, if any, he is subject to in Revised Subchapter H that

fall outside of those requirements specifically applicable to SVPs, which our

Supreme Court has already declared are constitutional.         See Butler II,

supra.   While Appellant suggests this Court should adopt the trial court’s

analysis in Torsilieri, Appellant ignores the crucial fact that Torsilieri

involved the non-SVP provisions of Revised Subchapter H. Because Appellant

was designated a SVP and our Supreme Court has already declared the


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provisions of Revised Subchapter H applicable to SVPs are constitutional,

Appellant’s second issue arguably fails on this basis alone. See Butler II.

      Additionally, unlike the defendant in Torsilieri, Appellant has produced

no scientific evidence whatsoever to support his claims that the underlying

legislative policy infringes on Appellant’s rights.   Rather, Appellant merely

attached the Chester County and Montgomery County Court of Common Pleas’

decisions in Torsilieri and Lacombe to his filings in the trial court, in the

attempt to persuade the trial court in his case to reach the same conclusion.

Likewise, Appellant’s appellate brief is mostly a “copy and paste” of various

excerpts from the trial court’s disposition in Torsilieri, but without any

attribution to the Chester County Court of Common Pleas.               Compare

Appellant’s Brief at 11-23 with Commonwealth v. Torsilieri, No. 15-CR-

0001570-2016 (Chester Cty CCP, filed August 31, 2018, at 41-45; 47-50; 52-

53; 73-77; 78-80).

      In fact, the only significant omissions in Appellant’s brief as compared

to the trial court’s disposition in Torsilieri, are the trial court’s numerous

citations to the scientific evidence presented in that case, and the trial court’s

thorough analysis of the Mendoza-Martinez factors, which Appellant does

not even mention. See Commonwealth v. Cosby, 224 A.3d 372 (Pa.Super.

2019), appeal granted in part, ___ A.3d ___, 2020 WL 3425277 (Pa. June 23,




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2020)10 (holding appellant failed to develop on appeal his challenge to

constitutionality of SORNA II where appellant cited, but did not adequately

apply, Mendoza-Martinez test to challenged provisions of SORNA II; while

appellant identified several aspects of SORNA II that have remained virtually

unchanged since SORNA I, he failed to provide any discussion, whatsoever,

concerning alterations made by General Assembly in crafting SORNA II in

response to Muniz and Butler I; this omission was fatal under Pa.R.A.P.

2119, as discussion of such changes is critical to any pertinent analysis of

whether challenged portion of SORNA II is punitive and, thus, subject to state

and federal prohibitions of ex post facto laws; further, appellant’s failure to

address changes between SORNA I and SORNA II showed he cannot overcome

heavy burden of persuasion to demonstrate that challenged provisions of

SORNA II clearly, palpably, and plainly violate state and federal ex post facto

clauses). Therefore, Appellant has failed to satisfy his burden to prove that

the Revised Subchapter H provisions applicable to him “clearly, palpably, and

plainly” violate the constitution.       See id.; Howe, supra.   Based upon the

foregoing, Appellant’s issues merit no relief. Accordingly, we affirm.




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10The Supreme Court’s partial grant of allowance of appeal was on grounds
unrelated to the constitutionality of SORNA II.

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     Judgments of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2020




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