                            [J-104-2019] [MO: Baer, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT


 COMMONWEALTH OF PENNSYLVANIA,                   :    No. 37 MAP 2018
                                                 :
                     Appellant                   :    Appeal from the Order of Chester
                                                 :    County Court of Common Pleas,
                                                 :    Criminal Division, dated July 10,
              v.                                 :    2018 at No. CP-15-CR-1570-2016.
                                                 :
                                                 :    ARGUED: November 20, 2019
 GEORGE J. TORSILIERI,                           :
                                                 :
                     Appellee                    :




                                 DISSENTING OPINION


JUSTICE MUNDY                                                   DECIDED: June 16, 2020
      I respectfully disagree with the majority’s decision to remand this matter to the trial

court for further development of the record.         In my view, Appellee simply failed to

demonstrate that the legislative underpinnings of Subchapter H of the Sex Offender

Registration and Notification Act (“SORNA”), 42 Pa.C.S. § 9799.10-9799.42, are

unsupported by current scientific research in a manner that would render the statute

unconstitutional. In the absence of such a finding, deference to the legislature’s policy

determinations is appropriate. Accordingly, I dissent.

      Subchapter H is based upon several legislative policy determinations, including

the finding that “[s]exual offenders pose a high risk of committing additional sexual

offenses and protection from the public from this type of offender is a paramount

governmental interest.” 42 Pa.C.S. § 9799.11(a)(4). Appellee presented the affidavits

and supporting documents of three expert witnesses before the trial court challenging the
veracity of this finding and the overall effectiveness of sex offender registries. The trial

court found Subchapter H unconstitutional on various grounds, relying heavily on what it

perceived as the legislature’s faulty policy determinations. The majority declines to

address the merits of the trial court’s conclusions, instead finding that Appellee presented

a “colorable claim” that the factual underpinnings of Subchapter H “have been

undermined by scientific study[.]” Majority Op. at 40. It therefore remands for further

development of the record by both parties in order for the trial court to determine “whether

Appellee has refuted the relevant legislative findings supporting the challenged

registration and notification provisions of [ ] Subchapter H.” Id. at 42. In my view, a

remand is neither necessary nor appropriate.

       Appellee presented discrete evidence from three experts demonstrating that sex

offenders are not likely to reoffend and that sex offender registries may not be an effective

tool for protecting society. He did not present evidence of a consensus regarding these

conclusions sufficient to undermine the legislature’s policy determinations. Indeed, our

legislature relied on scientific studies supporting its findings when reaching the policy

determinations that form the basis of our sex offender registration laws. The legislature

had an opportunity to reexamine these findings when it passed Subchapter H two years

ago on June 12, 2018. Having provided nothing more than a counter-narrative to the

determinations reached by our legislature, we must defer to the legislature’s findings.

Commonwealth v. Muniz, 164 A.3d 1189, 1217 (Pa. 2017) (explaining policy

determinations concerning “complex societal issues” such as the efficacy of sex offender

registration laws in preventing recidivism are matters for the legislature, especially where

there is a lack of consensus among authorities). We have acknowledged that deference

to the legislature’s policy determinations is preferable in these circumstances because of

its superior ability to compile research and examine issues of social policy. Basehore v.




                              [J-104-2019] [MO: Baer, J.] - 2
Hampden Indus. Dev. Auth., 248 A.2d 212, 217 (Pa. 1968) (“[C]ourts are not in a position

to assemble and evaluate the necessary empirical data which forms the basis for the

legislature’s findings.”). Accordingly, I dissent and would reverse the order of the trial

court.



         Chief Justice Saylor joins this dissenting opinion.




                                [J-104-2019] [MO: Baer, J.] - 3
