J-S16018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

CLARENCE TYRONE TAYLOR

                        Appellant                  No. 1090 MDA 2014


           Appeal from the Judgment of Sentence May 29, 2014
            In the Court of Common Pleas of Lancaster County
           Criminal Division at No(s): CP-36-CR-0000785-2013


BEFORE: PANELLA, OLSON and OTT, JJ.

MEMORANDUM BY OLSON, J.:                            FILED JUNE 02, 2015

     Appellant, Clarence Tyrone Taylor, appeals from the judgment of

sentence entered on May 29, 2014 in the Criminal Division of the Court of

Common Pleas of Lancaster County. We affirm.

     The facts in this case are not in dispute. In December 2012, the Child

Predator Section of the Pennsylvania Office of the Attorney General

commenced an investigation in response to an incident in which D.W., a

15-year-old male, reported that he received inappropriate messages on

Facebook from Appellant, an associate pastor at the church D.W. attended.

During the investigation, Special Agent Britteny Baughman with the Office of

the Attorney General obtained consent to access D.W.’s Facebook account

and assume D.W.’s identity in order to communicate with Appellant.
J-S16018-15



        Between December 4, 2012 and December 13, 2012, Appellant

communicated through Facebook and by text message with an individual he

believed to be D.W., but who was actually Special Agent Baughman. During

these exchanges, Appellant sent explicit messages and several times asked

if he could meet D.W. Appellant also asked D.W. to send a nude photograph

of himself.      During one of these exchanges, Appellant sent D.W. a

photograph of an exposed penis.

        Eventually, investigators learned that Appellant lived approximately

250 feet away from D.W.            Due to Appellant’s proximity to D.W., agents

obtained a search warrant and an arrest warrant. On December 13, 2012,

Appellant insisted upon meeting D.W. when Appellant returned home from

work.    When Appellant arrived at home, law enforcement officers arrested

him and charged him with one count each of unlawful contact with a minor, 1

criminal use of a communication facility,2 and solicitation to commit sexual

abuse of children.3

        On January 27, 2014, at the conclusion of a three-day trial, a jury

found Appellant guilty of all offenses.          On May 29, 2014, the trial court

sentenced     Appellant     to   an   aggregate    term   of   three   to   six   years’


____________________________________________


1
    18 Pa.C.S.A. § 6318(a)(1).
2
    18 Pa.C.S.A. § 7512.
3
    18 Pa.C.S.A. §§ 902(a) and 6312.



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incarceration, followed by four years’ probation.            In addition, over the

objection of counsel,4 the trial court ordered Appellant to register as a sex

offender for the remainder of his life because he had two qualifying

convictions for purposes of 42 Pa.C.S.A. §§ 9799.14 and 9799.15 of the Sex

Offenders     Registration     and    Notification   Act   (SORNA),   42   Pa.C.S.A.

§§ 9799.10-9799.40.

       Appellant did not file a post-sentence motion but, on June 27, 2014,

he filed a timely notice of appeal to this Court. On July 28, 2014, Appellant

timely complied with the trial court’s order to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Thereafter,

the trial court issued its opinion on August 25, 2014.

       Appellant raises a single issue for our consideration on appeal.

         Where [Appellant’s] offenses involved a single course of
         conduct and one intended victim, should he have been
         sentenced to 25 years of sex offender registration,
         pursuant to 42 Pa.C.S.[A. §§] 9799.14 and 9799.15, rather
         than lifetime registration?

Appellant’s Brief at 6.

       Appellant’s brief advances a straightforward claim in support of his

request for relief. Appellant maintains that he should have been sentenced

to a 25-year registration period under §§ 9799.14 and 9799.15, rather than

____________________________________________


4
  In his objection, trial counsel argued that Appellant should be subject to a
25-year registration period because his two convictions involved only one
criminal episode and one victim.



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lifetime registration, because his offenses involved a single course of conduct

and one intended victim. In leveling his claim, Appellant points out that his

crimes were nonviolent, occurred over a short span of time, and involved

only text or other forms of digital messaging to an undercover police officer.

Appellant relies on the decision of the Commonwealth Court in A.S. v.

Pennsylvania State Police, 87 A.3d 914 (Pa. Commwlth. 2014) and our

Supreme Court’s Opinion in Support of Reversal in Commonwealth v.

Gehris, 54 A.3d 862 (Pa. 2012) to support his contention that this Court

should vacate the lifetime registration aspect of his sentence and substitute

a registration period of 25 years.

      Our standard and scope of review over Appellant’s contentions are well

settled.

      [T]he “application of a statute is a question of law, and our
      standard of review is plenary.” Commonwealth v. Baird, 856
      A.2d 114, 115 (Pa. Super. 2004). When interpreting a statute,
      the Statutory Construction Act dictates our approach. See 1
      Pa.C.S.A. § 1921; Baird, supra at 115. “[T]he object of all
      interpretation and construction of statutes is to ascertain and
      effectuate the intention of the General Assembly ....” Id. “[T]he
      best indication of legislative intent is the plain language of a
      statute.” Commonwealth v. Bradley, [] 834 A.2d 1127, 1132
      (Pa. 2003).

Commonwealth v. Merolla, 909 A.2d 337, 346 (Pa. Super. 2006).

      Applying this standard, Appellant asks us to consider whether his

convictions for unlawful contact with a minor (18 Pa.C.S.A. § 6318(a)(1))

and solicitation to commit sexual abuse of children (18 Pa.C.S.A. §§ 902(a)

and 6312), which were entered at the same time following his trial before a

                                     -4-
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jury, constitute two separate convictions under §§ 9799.14 and 9799.15 of

SORNA.      We begin our analysis by setting forth the applicable statutory

provisions and then turn to the relevant case law.

       Section 9799.14 of SORNA establishes a three-tier classification

system for sexual offenses. See 42 Pa.C.S.A. § 9799.14(b)-(d) (specifying

sex crimes that qualify for classification as either tier I, tier II, or tier III

offenses). SORNA classifies the crimes of unlawful contact with a minor and

criminal solicitation to commit sexual abuse of children as tier II offenses.5

____________________________________________


5
  Citing 42 Pa.C.S.A. § 9799.14(b)(9) and (22), the Commonwealth asserts
in its brief that Appellant’s conviction for criminal solicitation to commit
sexual abuse of children constituted a tier I offense. Commonwealth Brief at
6. This assertion appears to rest on the assumption that Appellant was
convicted for soliciting an offense defined at 18 Pa.C.S.A. § 6312(d).

Our review of the certified record reveals that Appellant’s conviction related
to a different subsection of § 6312. Both the criminal complaint and
information lodged against Appellant charged him with violating § 6312(b),
inasmuch as he requested photographs depicting D.W. in the nude. Section
6312(b) makes it a crime for a person to photograph, videotape, or depict
on computer or film a minor engaged in a prohibited sexual act. 18
Pa.C.S.A. § 6312(b). In contrast, § 6312(d) makes it an offense for a
person to intentionally view or knowingly possess child pornography. 18
Pa.C.S.A. § 6312(d).

Since the charging documents and testimony in this case support a
conviction under § 6312(b), we shall treat Appellant’s conviction as arising
under that subsection and overlook the assertion set forth in the
Commonwealth’s brief. We note, however, that this is largely a distinction
without a difference. SORNA classifies a conviction under § 6312(d) as a tier
I offense but categorizes a conviction under § 6312(b) as a tier II offense.
Compare 42 Pa.C.S.A. § 9799.14(b)(9) (classifying a § 6312(d) conviction
as a tier I offense) with § 9799.14(c)(4) (classifying a § 6312(b) conviction
as a tier II offense). Nevertheless, whether Appellant was convicted of two
(Footnote Continued Next Page)


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Id. at § 9799.14(c)(4) (sexual abuse of children), (c)(5) (unlawful contact

with a minor), and (c)(18) (making solicitation of a listed offense a tier II

crime).   Section 9799.14 further provides, however, that tier III crimes

include “[t]wo or more convictions of offenses listed as [t]ier I or [t]ier II

sexual offenses.” Id. at § 9799.14(d)(16).

      Section 9799.15 of SORNA sets forth the registration requirements for

individuals who have committed offenses that fall within each tier described

in § 9799.14.6     Under § 9799.15, “[a]n individual convicted of a [t]ier III

sexual offense shall register for the life of the individual.”            Id. at

§ 9799.15(a)(3). Applying these statutory provisions, Appellant is subject to

SORNA’s lifetime registration requirement because his two tier II convictions

deem him to be a tier III offender under § 9799.15(a)(3).

                       _______________________
(Footnote Continued)

tier II offenses, or one tier I offense and one tier II offense, the net result is
that Appellant is deemed to have committed a tier III offense. See 42
Pa.C.S.A. § 9799.14(d)(16) (defining tier III offenses to include “[t]wo or
more convictions of offenses listed as [t]ier I or [t]ier II sexual offenses”).
6
   Recently, the Commonwealth Court declared certain aspects of
§ 9799.15(g) of SORNA, requiring registrants to update in person changes in
their registration information such as temporary lodging, cellular telephone
numbers, and motor vehicle operated, to be unconstitutional. Coppolino v.
Noonan, 102 A.3d 1254, 1277-1279 (Pa. Commwlth. 2014). Although the
Commonwealth Court determined that the “in person” requirement was
unconstitutional, the Court found that this provision was severable from the
remainder of the statutory scheme. Since § 9799.15(g) has no application
to this case, and because the Commonwealth Court found the offending
terms of § 9799.15(g) to be severable from the remaining provisions, we
see no impediment to the application of the remaining pertinent sections of
the statute in this case.



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       We turn now to consider the relevant interpretive case law.           In

Commonwealth v. Merolla, 909 A.2d 337 (Pa. Super. 2006), this Court

considered statutory construction issues very similar to those Appellant

raises in this appeal.      In that case, the defendant, Alfred Merolla, entered

nolo contendere pleas to two counts of indecent assault and one count of

statutory sexual assault stemming from his attacks on three female victims,

all less than 16 years of age. At sentencing, the trial court ordered Merolla

to register with the state police for a period of ten years.                The

Commonwealth filed a post-sentence motion requesting, among other

things, that the trial court direct Merolla to register for life.     After that

motion was denied by operation of law, the Commonwealth appealed.

       On appeal, this Court considered whether Merolla’s pleas to two

separate counts of indecent assault, entered at the same time, constituted

two convictions under the registration provisions of Megan’s Law II, a

predecessor to SORNA.7 As a case of first impression, this Court looked, for

____________________________________________


7
   By way of background, we recite our Supreme Court’s summary of the
legislative history of Megan’s Law.

       The Act of October 24, 1995, P.L. 1079 (Spec.Sess. No. 1), now
       known as Megan's Law I, was to a significant extent ruled
       unconstitutional in Commonwealth v. Donald Williams, 733
       A.2d 593 (Pa. 1999).     The General Assembly subsequently
       enacted Megan's Law II, whose constitutionality th[e Supreme]
       Court substantially upheld in Commonwealth v. Gomer
       Williams, 832 A.2d 962 (Pa. 2003). In the Act of November 24,
       2004, P.L. 1243 (known as Megan's Law III), the General
(Footnote Continued Next Page)


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purposes of initial comparison, to the Supreme Court’s interpretation of the

Three Strikes Statute, 42 Pa.C.S.A. § 9714, in Commonwealth v. Shiffler,

879 A.2d 185 (Pa. 2005). This Court found that the Three Strikes Statute

applied “[w]here the person had at the time of the commission of the

current offense previously been convicted of two or more such crimes[.]”

42 Pa.C.S.A. § 9714(a)(2) (emphasis added).              We also acknowledged the

Supreme Court’s conclusion that the legislature adopted the Three Strikes

Statute to implement a sentencing philosophy that “punish[ed] more

severely offenders who have persevered in criminal activity despite the

theoretical effects of penal discipline.”         Merolla, 909 A.2d at 346. Lastly,

                       _______________________
(Footnote Continued)

      Assembly addressed several matters, including that portion of
      Megan's Law II held to be unconstitutional in Gomer Williams,
      concerning the penalty provisions that attached to sexually
      violent predators who failed to comply with registration and
      other requirements of the act. In the Act of November 29, 2006,
      P.L. 1567 (effective January 1, 2007), the General Assembly
      amended the legislation once again, with respect to matters not
      pertinent to the disposition of the present appeal. See
      Commonwealth v. Lee, 935 A.2d 865 passim (Pa. 2007), for a
      more detailed discussion of the history of these successive
      legislative acts that individually and collectively herein shall also
      be referred to simply as “Megan's Law.”

Commonwealth v. Leidig, 956 A.2d 399, 400 n.1 (Pa. 2008). Megan’s
Law was again amended, see Act 98 of 2008, P.L. 1352, effective December
8, 2008, and Act 111 of 2011, P.L. 446, effective December 20, 2011.
However the language of § 9795.1(b)(1) was unaffected by these changes.
The various amendments to Megan’s Law do not affect our statutory
construction analysis in this case since the operative SORNA language at
issue here is virtually unchanged from its predecessor provisions found in
prior versions of Megan’s Law.



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we noted the Supreme Court’s opinion that, in order to conform to the

legislature’s intent, application of the Three Strikes Statute required a

specific sequence of events: first offense; first conviction; first sentencing;

second offense; second conviction; and second sentencing. Id. at 345.

       The opinion of this Court in Merolla identified substantial distinctions

between the registration requirements found in Megan’s Law II and the

Three Strikes Statute.        We began with the plain terms of the respective

provisions.    Much like the language found in § 9799.14(d)(16) of SORNA,

the lifetime registration provision contained in Megan’s Law II provided that

“[a]n individual with two or more convictions of any of the offenses set forth

in subsection (a)” shall be subject to lifetime registration.8 42 Pa.C.S.A.

§ 9795.1(b)(1). Distinguishing this language from that of the Three Strikes

Statute, we noted that Megan’s Law II did not require a previous conviction.

Merolla, 909 A.2d at 346.              Next, we observed that the registration

provisions in Megan’s Law II were not punitive in nature and that the law

was based on concern for public safety and not enhanced punishment for

repeat offenders.       Id.    We therefore held that the sequence of events

described in Shiffler did not apply and its was irrelevant that Merolla was

not sentenced for his first offense before the commission of his second

crime. Id. at 347. For these reasons, we found that Merolla was subject to
____________________________________________


8
  Merolla’s indecent assault convictions were listed in subsection (a) of 42
Pa.C.S.A. § 9795.1(b)(1).



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lifetime registration under § 9795.1(b)(1) since his simultaneous guilty pleas

to two separate counts of indecent assault qualified as two convictions under

the registration provisions of Megan’s Law II.

       This Court next encountered the claim that simultaneous convictions

do   not    support     lifetime    registration   under   Megan’s   Law   III   in

Commonwealth v. Gehris, 996 A.2d 541 (Pa. Super. 2010) (unpublished

memorandum).         In that case, the defendant, Patrick Gehris, repeatedly

engaged in sexually explicit communications with an individual he believed

to be a 13-year-old girl.9 During this time, Gehris solicited nude pictures of

the girl, forwarded digital images of his penis to the individual he believed to

be the girl, and arranged to meet the girl in a motel room. Because of these

activities, the Commonwealth charged Gehris with multiple offenses and he

eventually pled guilty to, inter alia, one count of criminal solicitation to

commit sexual exploitation of children, 18 Pa.C.S.A. §§ 902 and 6320, and

criminal solicitation to commit sexual abuse of children, 18 Pa.C.S.A. §§ 902

and 6312(b).         Because these offenses were listed in 42 Pa.C.S.A.

§ 9795.1(b)(1), the trial court found that Gehris was subject to lifetime

registration.



____________________________________________


9
  In fact, these exchanges occurred online with a Pennsylvania State Police
officer trained to pose as a teenager in order to investigate potential sexual
predators.



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      Gehris appealed, arguing that the trial court erred in ordering lifetime

registration where the underlying criminal conduct for his convictions arose

from a single, non-violent episode involving one victim. In an unpublished

memorandum, we sustained the trial court’s ruling and cited our prior

decision in Merolla as support. Commonwealth v. Gehris, 996 A.2d 541

(Pa. Super. 2010) (unpublished memorandum) at 6.

      Gehris pursued further review and an evenly divided panel of our

Supreme Court affirmed.     Commonwealth v. Gehris, 54 A.3d 862 (Pa.

2012) (per curiam). In her Opinion in Support of Affirmance (OISR), Justice

Todd found that the registration requirement was adopted to protect the

public, not to escalate punishment for repeat offenders.           Id. at 862.

Moreover, since § 9795.1 did not reflect a recidivist philosophy, there was no

need to depart from the plain language of the statute.       Id.   Applying this

approach, Justice    Todd determined that the       timing    of the    multiple

convictions was irrelevant under § 9795.1, “even when two convictions

[arose] out of two separate criminal acts against a single victim … during

one criminal episode.” Id. Thus, the lifetime registration requirement found

in § 9795.1 attached at the moment when a defendant acquired two or more

convictions for specified offenses. Id.

      In his Opinion in Support of Reversal, then Chief Justice Castille found

that § 9795.1 embraced a recidivist philosophy. Id. at 878. Thus, although

first-time and lesser offenders such as Gehris might qualify for lifetime


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registration under the literal requirements of § 9795.1, Chief Justice Castille

argued that such defendants should be given an opportunity for reform

pursuant to lesser sanctions so long as it was clear that their offenses were

part of the same course of criminal conduct.         Id. at 879.     Chief Justice

Castille was also persuaded by other factors in the case, including the non-

violent nature of Gehris’ crimes, the lack of harm to an actual victim, Gehris’

voluntary participation in treatment, his expressions of remorse, and

testimony establishing that Gehris did not qualify as a sexually violent

predator and that he was a good candidate for rehabilitation. Id. Although

Gehris       sets out the relevant arguments we consider in this appeal, the

opinion of an evenly divided Supreme Court merely affirms a decision of this

Court     but    carries     no   precedential   authority   in    future   cases.

Commonwealth v. Thompson, 985 A.2d 928, 937-938 (Pa. 2009) (“This

Court has made it clear that per curiam orders have no stare decisis

effect.”).

        Our next opportunity to address the issue currently before us came in

Commonwealth v. Mielnicki, 53 A.3d 930 (Pa. Super. 2012) (unpublished

memorandum).        There, the Commonwealth charged the defendant, Adam

Mielnicki, with 100 counts of sexual abuse of children, 18 Pa.C.S.A.

§ 6312(d), for possessing child pornography between December 8, 2009 and

February 18, 2010.         The information also charged Mielnicki with separate

counts of disseminating child pornography by means of a computer facility,


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18 Pa.C.S.a. § 7512(a), during this same period.              Mielnicki thereafter pled

guilty to five counts of sexual abuse of children and the trial court ordered

lifetime registration under § 9795.1(b)(1).            After the trial court denied

reconsideration of its registration order, Mielnicki appealed.

      On appeal, Mielnicki argued that the trial court erred in ordering

lifetime registration in view of his concurrent pleas to multiple counts of

sexual abuse of children which stemmed from a single investigation. Again,

we   affirmed   the   trial   court   based     upon    our    decision   in   Merolla.

Commonwealth v. Mielnicki, 53 A.3d 930 (Pa. Super. 2012) (unpublished

memorandum) at 3-5.           On July 2, 2013, our Supreme Court granted

Mielnicki’s petition for allowance of appeal. Commonwealth v. Mielnicki,

71 A.3d 245 (Pa. 2013). After argument, however, the Court, on December

15, 2014, dismissed the appeal as improvidently granted. Commonwealth

v. Mielnicki, 105 A.3d 245 (Pa. 2013).

      The Commonwealth Court also examined the question presently before

us in A.S. v. Pennsylvania State Police, 87 A.3d 914 (Pa. Commwlth.

2014).     The Commonwealth Court summarized the facts in that case as

follows:

      This action arose out of the interactions between A.S., who was
      21 years old at the time of the incident, and a 16–year–old
      female minor who engaged in consensual sexual relations.
      Because the age of consent in Pennsylvania is 16, the
      consensual sex between those individuals was not a crime. See
      Section 3122.1 of the Crimes Code, 18 Pa.C.S. § 3122.1. While
      it is not a crime to have sex with a 16–year–old minor,
      somewhat anomalously, it is a crime to photograph or cause to

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      be photographed a 16-year-old having consensual sex and
      causing a minor to take photographs of herself engaging in the
      sexual acts.    A.S. admitted that he met the victim online,
      developed a relationship with her which led to consensual sex,
      and that he persuaded the victim to take photographs of herself
      in various sexual positions with her digital camera. He also used
      the minor's digital camera to photograph the two engaging in
      sexual relations.

      As a result of this conduct, A.S. pled guilty in the Court of
      Common Pleas of Montgomery County (trial court) to one count
      of violating Section 6312(b) of the Crimes Code, 18 Pa.C.S.
      § 6312(b) (sexual abuse of children), one count of violating
      Section 6318(a)(5), 18 Pa.C.S. § 6318(a)(5) (unlawful contact
      with a minor), and one count of violating Section 6301, 18
      Pa.C.S. § 6301 (corruption of minors). As a result of [A.S.’s]
      guilty pleas, the trial court sentenced A.S. to two concurrent 5-
      to 23–month terms of imprisonment and a consecutive 5–year
      probationary term.

A.S., 87 A.3d at 916-917 (record citations omitted).

      At sentencing, the trial court advised A.S. that he would be subject to

the reporting requirements set forth in § 9795.1. According to the

Commonwealth Court, the sentencing hearing transcript established that the

trial court, the prosecuting attorney, and A.S. all believed that A.S. would be

subject to a ten-year, not lifetime, registration requirement. On August 2,

2002, upon his release from imprisonment, A.S. registered with the

Pennsylvania State Police (PSP) as a sex offender as required by Megan's

Law II. Following the expiration of the ten-year period in August 2012, A.S.

asked the PSP to remove his name from the sex offender registry. PSP

refused, explaining that, because A.S. pled guilty to one count each of

sexual abuse of children and unlawful contact with a minor, he was subject


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to lifetime registration under § 9795.1(b)(1) as “an individual with two or

more convictions of ... the offenses set forth in subsection (a).” 10      42

Pa.C.S.A. § 9795.1(b)(1).

       Based on PSP's refusal to remove his name from the registry, A.S. filed

a mandamus petition asking the Commonwealth Court to order PSP to

change A.S.'s lifetime registration designation under § 9795.1(b) to a

10-year registration designation under § 9795.1(a). Adopting the rationale

set forth in Chief Justice Castille’s OISR in Gehris, the Commonwealth Court

granted A.S.’s motion for summary relief.11 See A.S., 87 A.3d at 920-923.

       We carefully reviewed the relevant appellate decisions that have

considered the issue before us.           Decisions issued by the Commonwealth

Court do not constitute binding precedent for the Superior Court.       Wells

Fargo Bank N.A. v. Spivak, 104 A.3d 7, 16 (Pa. Super. 2014). However, a

prior published opinion issued by a panel of this Court constitutes binding

precedential authority.      See Commonwealth v. Beck, 78 A.3d 656, 659

(Pa. Super. 2013) (“[a] panel [of this Court] is not empowered to overrule
____________________________________________


10
    Sexual abuse of children and unlawful contact with a minor were each
listed offenses under § 9795.1(a)(1) of the Sentencing Code.
11
   On April 25, 2014, our Supreme Court noted probable jurisdiction for
purposes of reviewing the Commonwealth Court’s decision in A.S. See A.S.
v. Pennsylvania State Police, 24 MAP 2014 (Pa. April 25, 2014). Our
independent research into the status of A.S. has revealed that the Supreme
Court deferred briefing in that matter pending resolution of Mielnicki.
However, in light of Mielnicki’s dismissal, the Court reset the briefing
schedule in A.S. The briefing schedule in A.S. has now closed.



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another panel of the Superior Court”). In Merolla, this Court considered the

issue now before us and held that simultaneous convictions for two listed

offenses qualified as two convictions for purposes of the sexual offender

registration   law.      Appellant     clearly   fits   that   criterion   in   this   case.

Accordingly, we conclude, based upon Merolla, that Appellant is not entitled

to relief on his claims.12

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/2/2015




____________________________________________


12
    Since Morella held that multiple simultaneous convictions supported
lifetime registration under a similar predecessor statute, we need not
remand this matter for further proceedings to determine whether Appellant’s
conduct constituted a “single criminal episode” for purposes of SORNA’s
registration requirements. See Trial Court Opinion, 8/25/14, at 6.



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