                                  [J-33-2016]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                               MIDDLE DISTRICT

   SAYLOR, C.J., EAKIN, BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.


COMMONWEALTH OF PENNSYLVANIA,               :   No. 28 MAP 2015
                                            :
                    Appellee                :   Appeal from the Order of the Superior
                                            :   Court at No. 1659 MDA 2013 dated
                                            :   September 18, 2014 Affirming the
             v.                             :   Judgment of Sentence of the Court of
                                            :   Common Pleas of Lancaster County,
                                            :   Criminal Division, dated August 16,
THOMAS MICHAEL LUTZ-MORRISON,               :   2013 at No. CR-36-0003611-2012.
                                            :
                    Appellant               :   ARGUED: March 8, 2016


                                       OPINION

JUSTICE DOUGHERTY                                     DECIDED: August 15, 2016
      Appellant Thomas Lutz-Morrison presents an issue similar to the issue posed in

A.S. v. Pa. State Police, __ A.3d __ (Pa. 2016), also decided today. A.S. involved the

proper construction of the lifetime-registration triggering language “two or more

convictions” in Megan’s Law II, Pennsylvania’s former sex offender registration statute.

See 42 Pa.C.S. §9795.1(b)(1) (superseded).       This appeal concerns nearly identical

triggering language brought over into Section 9799.14 of Pennsylvania’s current statute,

Act 111 of 2011, the Sex Offender Registration and Notification Act (SORNA), 42

Pa.C.S. §§9799.10-9799.41. Our holding here follows from A.S. and, as explained

below, we reverse and remand.

      Megan’s Law II included a two-tier system for those offenders subject to its

registration requirement.   42 Pa.C.S. §9795.1(a),(b) (superseded).    The history and

background of SORNA has been detailed in other cases. See, e.g., In re J.B., 107 A.3d
1, 3-9 (Pa. 2014). For our purposes it is enough to reiterate SORNA “added crimes to

the list defined as sexually violent offenses, and established a three-tiered system for

classifying such offenses and their corresponding registration periods.” Commonwealth

v. Farabaugh, 128 A.3d 1191, 1192 (Pa. 2015).              The tiers provide for registration

periods of fifteen years (Tier I), twenty-five years (Tier II), or lifetime (Tier III), depending

on the offense(s) and/or circumstances. See 42 Pa.C.S. §9799.15(a)(1)-(3).

       Section 9799.14 of SORNA, as relevant here, provides:

         (a) Tier system established. — Sexual offenses shall be classified in a
       three-tiered system composed of Tier I sexual offenses, Tier II sexual
       offenses and Tier III sexual offenses.

        (b) Tier I sexual offenses. — The following offenses shall be classified as
       Tier I sexual offenses:

                                    *       *      *       *

              (9) 18 Pa.C.S. § 6312(d) (relating to sexual abuse of children).

                                    *       *      *       *

        (c) Tier II sexual offenses. — The following offenses shall be classified
       as Tier II sexual offenses:

                                    *       *      *       *

        (d) Tier III sexual offenses. — The following offenses shall be classified
       as Tier III sexual offenses:

              (1) 18 Pa.C.S. § 2901(a.1) (relating to kidnapping).

              (2) 18 Pa.C.S. § 3121 (relating to rape).

              (3) 18 Pa.C.S. § 3122.1(b) (relating to statutory sexual assault).

              (4) 18 Pa.C.S. § 3123 (relating to involuntary deviate sexual
       intercourse).

              (5) 18 Pa.C.S. § 3124.1 (relating to sexual assault).

              (6) 18 Pa.C.S. § 3124.2(a.1).


                                        [J-33-2016] - 2
                (7) 18 Pa.C.S. § 3125 (relating to aggravated indecent assault).

                (8) 18 Pa.C.S. § 3126(a)(7).

                (9) 18 Pa.C.S. § 4302(b) (relating to incest).

                (10) 18 U.S.C. § 2241 (relating to aggravated sexual abuse).

                (11) 18 U.S.C. § 2242 (relating to sexual abuse).

                (12) 18 U.S.C. § 2244 where the victim is under 13 years of age.

              (13) A comparable military offense or similar offense under the laws
         of another jurisdiction or country or under a former law of this
         Commonwealth.

                 (14) An attempt, conspiracy or solicitation to commit an offense
         listed in paragraph (1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12) or
         (13).
                 (15) (Reserved).

                (16) Two or more convictions of offenses listed as Tier I or Tier
         II sexual offenses.

42 Pa.C.S. §9799.14(a)-(d) (emphasis added).
         The background of the underlying criminal prosecution is as follows.                   An

investigation led police to secure a search warrant for a residence in Lancaster County,

where appellant lived with his mother and brother. A March 2, 2012, search led to the

seizure of four computers and an Apple iPhone 4. On the same day, appellant admitted

to detectives he had downloaded child pornography files to his computer.                        An

examination revealed 142 child pornography videos and 45 child pornography images

on the computer along with 15 child pornography images on appellant’s iPhone.

Appellant was charged with 77 counts of sexual abuse of children (possession of child

pornography). See 18 Pa.C.S. §6312(d).1


1
    Section 6312 is entitled “Sexual abuse of children.” Subsection (d) provides:
(continuedL)

                                          [J-33-2016] - 3
       On August 16, 2013, the twenty-two-year-old appellant entered an open plea of

guilty to three counts of possession of child pornography; the remaining charges were

withdrawn by the Commonwealth.            That same day, appellant was sentenced to

consecutive one-year terms of probation on each count. The trial court also notified

appellant his convictions subjected him to lifetime registration under SORNA as a Tier

III offender. Appellant reserved an objection to that classification, averring the statute

was ambiguous, and the only reason it arguably was triggered was because his plea

encompassed more than one count.

       In its Pa.R.A.P. 1925(b) opinion, the trial court reasoned each count of

possessing child pornography represented a Tier I sexual offense and conviction.

Based on a plain reading of the statute and the Opinion in Support of Affirmance (OISA)

in Commonwealth v. Gehris, 54 A.3d 862 (Pa. 2012) (construing predecessor “two or

more convictions” provision in Megan’s Law), the court concluded the “two or more

convictions of offenses” necessary to trigger lifetime registration may arise from the

same criminal information.       Thus, the court found appellant was a Tier III offender

subject to lifetime reporting.

       On appeal to the Superior Court, appellant claimed he should be classified as a

Tier I offender because his multiple Tier I convictions arose from a single nonviolent

course of conduct, and his plea occurred in a single hearing.        The Superior Court

affirmed in a memorandum opinion. The panel recognized this Court deadlocked 3-3 on

(Lcontinued)
     (d) Child pornography. — Any person who intentionally views or
     knowingly possesses or controls any book, magazine, pamphlet, slide,
     photograph, film, videotape, computer depiction or other material depicting
     a child under the age of 18 years engaging in a prohibited sexual act or in
     the simulation of such act commits an offense.

18 Pa.C.S. §6312(d).



                                       [J-33-2016] - 4
a similar question in the Megan’s Law context in Gehris, with an OISA by Justice Todd

(joined by former Justices Eakin and McCaffery) and an Opinion in Support of Reversal

(OISR) by former Chief Justice Castille (joined by Justices Saylor (now Chief Justice)

and Baer. After summarizing the competing Gehris opinions, the panel determined its

own precedent in Commonwealth v. Merolla, 909 A.2d 337 (Pa. Super. 2006),

controlled.   In the panel’s view, nothing in SORNA’s language warranted an

interpretation differing from Merolla’s construction of the similar language in Megan’s

Law. Accordingly, the panel held the plain language of SORNA required that appellant,

who had three “convictions” of Tier I offenses, be subject to lifetime registration. The

panel was aware of the contrary holding of the Commonwealth Court iteration of A.S. v.

Pa. State Police, 87 A.3d 914 (Pa. Cmwlth. 2014) (en banc), but declined to follow that

decision given its obligation to follow its own precedent.

       This Court granted review of the question whether appellant is properly subject to

lifetime reporting under SORNA.        The issue involves statutory interpretation and

application, which presents a question of law; thus our review is plenary and non-

deferential. See, e.g., Commonwealth v. Conklin, 897 A.2d 1168, 1175 (Pa. 2006).

       In the course of their arguments, both parties recognize the “two or more

convictions” language in SORNA was also present in Megan’s Law and thus was

subject to examination in cases like Gehris, Merolla, and A.S. Thus, in addition to

disputing whether the SORNA provision is ambiguous and whether it implicates “the

recidivist philosophy,” and forwarding supporting arguments implicating statutory

construction, appellant invokes the Gehris OISR and A.S., while the Commonwealth

relies upon Merolla.

       Given the focus in the lower courts and the present briefing upon the Megan’s

Law cases, and the absence of any suggestion that anything in SORNA would lead to a




                                      [J-33-2016] - 5
different result on the question of the proper meaning of the term “two or more

convictions,” resolution of this appeal is straightforward: it is effectively controlled by

today’s decision in A.S.2,3    We will not repeat the A.S. analysis at length here as

appellant’s case developed under similar circumstances: he was charged in a single

information arising from the search of his property; he entered court as a first-time

offender on those charges and pled guilty to three counts — all Tier I offenses; and

there were no direct victims of his crimes, much less multiple direct victims.4 It is


2
   We are aware of a textual distinction between the two statutory regimes. Under the
two-tier system of Megan’s Law, lifetime registration was required for “[a]n individual
with two or more convictions of any of the offenses set forth in subsection (a),” i.e., for
offenses otherwise subject to ten-year registration.             42 Pa.C.S. §9795.1(a)-(b)
(superseded) (emphasis added). Under SORNA’s three-tier system, lifetime registration
is required for offenders with “two or more convictions of offenses listed as Tier I or Tier
II sexual offenses,” i.e., for offenses otherwise subject to fifteen-year or twenty-five-year
registration. 42 Pa.C.S. §9799.14(d). No argument is forwarded in the briefs premised
upon the General Assembly’s deletion of the words “any of the” in SORNA.
3
   Appellant’s brief was prepared by private counsel. On the eve of argument, however,
the Defender Association of Philadelphia, which was not appointed and which had not
filed a brief as amicus curiae, entered an appearance as counsel for appellant and an
assistant defender presented oral argument. Counsel’s oral presentation included
several sophisticated arguments not pursued in appellant’s brief, including, inter alia, a
claim of ambiguity premised upon the textual differences between Megan’s Law and
SORNA; a claim the statute is subject to strict construction because, in other
circumstances not present here, it applies retroactively, see 1 Pa.C.S. §1928(b)(2)
(retroactive provisions “shall be strictly construed”); and a claim that “sequential
prosecutions” should be required to trigger the recidivist provision.
These claims were not outlined or developed in appellant’s brief. In addition, it appears
the Commonwealth, like the Court, was not provided a written exposition of the new
theories and points presented at oral argument. Under the circumstances, for purposes
of decision, we will confine ourselves to the arguments outlined in the briefs.
4
   We do not dispute the Commonwealth’s argument that each image of child
pornography possessed represents a separate, independent crime, see Appellee’s Brief
at 12-13, citing Commonwealth v. Davidson, 938 A.2d 198, 219 (Pa. 2007) (“Each use
of a minor to create a visual depiction of child pornography constitutes a separate and
distinct abuse of that child, and thus represents an individual violation of the statute.”),
and appellant in fact was convicted and sentenced for his multiple crimes. But, for
(continuedL)

                                      [J-33-2016] - 6
enough to note we hold that Section 9799.14, considered in the context of the statutory

language as a whole, is susceptible to two reasonable constructions, and the statute,

which sets forth a graduated (three-tier) scheme of registration, encompasses a

recidivist philosophy.    As such, the statute requires an act, a conviction, and a

subsequent act to trigger lifetime registration for multiple offenses otherwise subject to a

fifteen- or twenty-five-year period of registration.

       Accordingly, we reverse the order of the Superior Court and remand for

imposition of a fifteen-year reporting requirement under SORNA.



       Former Justice Eakin did not participate in the consideration or decision of this

matter.

       Chief Justice Saylor and Justices Baer and Donohue join the opinion.

       Justice Todd files a dissenting opinion.

       Justice Wecht files a dissenting opinion.




(Lcontinued)
reasons explained in A.S., we view the SORNA registration question as distinct and
deem it controlled by the recidivist philosophy animating this tiered scheme.




                                       [J-33-2016] - 7
