J-S18011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

KEVIN GENE PRITTS

                          Appellant                   No. 900 WDA 2017


     Appeal from the Judgment of Sentence imposed January 17, 2017
         In the Court of Common Pleas of Westmoreland County
             Criminal Division at No.: CP-65-CR-0002086-2014


BEFORE: STABILE, MUSMANNO, JJ., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                         FILED JUNE 18, 2018

      Appellant Kevin Gene Pritts appeals from the judgment of sentence

entered in the Court of Common Pleas of Westmoreland County (“trial court”),

following his jury convictions for multiple sex crimes against a child under the

age of thirteen. Upon review, we affirm Appellant’s convictions, but reverse

his sexually violent predator (“SVP”) designation and remand for the sole

purpose of having the trial court issue the appropriate notice under 42

Pa.C.S.A. § 9799.23 as to Appellant’s registration requirements.

      On March 17, 2016, a jury found Appellant guilty of two counts of

involuntary deviate sexual intercourse with a child, two counts of indecent

assault of a child, endangering the welfare of children, and corruption of
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minors.1 Pursuant to the Sexual Offender Registration and Notification Act

(“SORNA”), the trial court ordered the Sexual Offender Assessment Board

(“SOAB”) to evaluate whether Appellant met the criteria for designation as an

SVP and deferred sentencing pending the completion of the evaluation. On

January 17, 2017, following a hearing, the trial court found that Appellant met

the criteria for an SVP designation. On the same day, the trial court sentenced

Appellant to an aggregate term of ten to twenty years’ imprisonment followed

by five years of probation.         Appellant timely filed post-sentence motions,

which the trial court denied. Appellant appealed to this Court. The trial court

did not direct Appellant to file a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal.

       On appeal, Appellant raises two issues for our review:

       [I.] Is [Appellant] entitled to have his SVP determination vacated
       pursuant to Commonwealth v. Butler, 173 A.3d 1212 (Pa.
       Super. 2017)?

       [II.] Does the use of a sexual assault expert witness under 42
       Pa.C.S.A. § 5920 violate [Appellant’s] rights to a fair trial, due
       process, and confrontation?

Appellant’s Brief at 6.

       We first address Appellant’s argument challenging his SVP designation.

Briefly, on July 17, 2017, our Supreme Court held in Commonwealth v.

Muniz, 164 A.3d 1189 (Pa. 2017), cert. denied, 138 S. Ct. 925 (2018), that

SORNA’s registration provisions constitute punishment, and, therefore, the

____________________________________________


1  18 Pa.C.S.A. §§ 3123(b), 3126(a)(7), 4304(A), and 6301(a)(1)(ii),
respectively.

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retroactive application of those provisions violates the ex post facto clauses of

the federal and Pennsylvania constitutions. A few months later, a panel of

this Court issued Butler acknowledging that “Muniz was a sea change in the

longstanding law of this Commonwealth as it determined that the registration

requirements under SORNA are not civil in nature but a criminal punishment.”

Butler, 173 A.3d at 1215. As such, the panel concluded that the statutory

mechanism for designating a defendant as an SVP set forth in 42 Pa.C.S.A. §

9799.24(e)(3), which permits a trial court to make the determination based

upon clear and convincing evidence, was “constitutionally flawed” pursuant to

the United States Supreme Court’s decisions in Alleyne v. United States,

570 U.S. 99 (2013) and Apprendi v. New Jersey, 530 U.S. 466 (2000). In

Alleyne, the United States Supreme Court held that any fact that increases

the mandatory minimum sentence of a crime is an element that must be

submitted to a jury and proved beyond a reasonable doubt. In Apprendi, the

Court held that any fact, other than a prior conviction, that increases the

penalty of a crime beyond the statutory maximum must be submitted to a

jury and proved beyond a reasonable doubt. The Butler Court, therefore,

held that “[T]rial courts cannot designate convicted defendants SVPs (nor may

they hold SVP hearings) until our General Assembly enacts a constitutional

designation mechanism.” Butler, 173 A.3d at 1218. Accordingly, the panel

vacated the order designating the defendant as an SVP, and remanded the

case to the trial court to issue the appropriate notice under Section 9799.23

of SORNA as to the defendant’s registration obligations.

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      Here, as stated, Appellant’s first argument challenges his designation as

an SVP under our recent decision Butler, the facts of which are

indistinguishable from this case.      Thus, consistent with Butler, we are

constrained to reverse Appellant’s SVP designation and remand this case to

the trial court to issue a proper notice under Section 9799.23 of SORNA.

      Appellant next challenges 42 Pa.C.S.A. § 5920, claiming it violates his

“constitutional rights to a fair trial, due process, and confrontation.”

Appellant’s Brief at 11. In so doing, Appellant seeks a backdoor approach to

exclude the trial testimony of the Commonwealth’s expert Carol Hughes, a

licensed psychologist. N.T. Trial, 3/16/16, at 242.

      Section 5920 provides:

      (a) Scope.--This section applies to all of the following:

         (1) A criminal proceeding for an offense for which
         registration is required under Subchapter H of Chapter 97
         (relating to registration of sexual offenders).

         (2) A criminal proceeding for an offense under 18 Pa.C.S.
         Ch. 31 (relating to sexual offenses).

      (b) Qualifications and use of experts.--

         (1) In a criminal proceeding subject to this section, a
         witness may be qualified by the court as an expert if the
         witness has specialized knowledge beyond that possessed
         by the average layperson based on the witness's experience
         with, or specialized training or education in, criminal justice,
         behavioral sciences or victim services issues, related to
         sexual violence, that will assist the trier of fact in
         understanding the dynamics of sexual violence, victim
         responses to sexual violence and the impact of sexual
         violence on victims during and after being assaulted.

         (2) If qualified as an expert, the witness may testify to facts
         and opinions regarding specific types of victim responses
         and victim behaviors.



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          (3) The witness’s opinion regarding the credibility of any
          other witness, including the victim, shall not be admissible.

          (4) A witness qualified by the court as an expert under this
          section may be called by the attorney for the
          Commonwealth or the defendant to provide the expert
          testimony.

42 Pa.C.S.A. § 5920 (footnote omitted).

       Instantly, based on our review of the record, it appears that Appellant

failed to challenge the constitutionality of Section 5920 in the trial court. 2 See

Commonwealth v. Santiago, 980 A.2d 659, 666 (Pa. Super. 2009)

(explaining that even claims of constitutional dimension are waived “if not

raised in the trial court”) (citations omitted), appeal denied, 991 A.2d 312

(Pa. 2010); see also Pa.R.A.P. 302(a) (“Issues not raised in the lower court

are waived and cannot be raised for the first time on appeal.”).          Indeed,

instead of challenging the testimony of Ms. Hughes under Section 5920,

Appellant specially acquiesced to the trial court’s acceptance of Ms. Hughes as

an expert under Section 5920. N.T. Trial, 3/16/16, at 246, 248. Accordingly,

Appellant’s second issue is waived.

       Order reversed. Judgment of sentence affirmed in all other respects.

Case remanded. Jurisdiction relinquished.



____________________________________________


2 Appellant also fails to cite to the place in the record where this claim was
preserved before the trial court. See Pa.R.A.P. 2117(c) and 2119(e) see also
Commonwealth v. Fransen, 42 A.3d 1100, 1106 n. 11 (Pa. Super. 2012)
(en banc) (“Failing to direct this Court to specific portions of the record in
support of an argument violates Pa.R.A.P. 2119(c) [and for] that reason alone,
we could conclude this issue is waived.”), appeal denied, 621 Pa. 682, 76
A.3d 538 (2013).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/2018




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