                          [J-36-2016] [MO: Dougherty, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                 MIDDLE DISTRICT


A.S.,                                      :   No. 24 MAP 2014
                                           :
                      Appellee             :   Appeal from the Order of the
                                           :   Commonwealth Court at No. 473 MD
                                           :   2012, dated March 7, 2014
              v.                           :
                                           :   ARGUED: March 8, 2016
                                           :
PENNSYLVANIA STATE POLICE,                 :
                                           :
                      Appellant            :


                             CONCURRING OPINION


JUSTICE DONOHUE                                   DECIDED: August 15, 2016


        The Majority finds that the lifetime registration triggering language under

Megan’s Law II – “two or more convictions” – is ambiguous, when considered in

the context of that statute. Majority Op. at 2. The Majority further finds that the

term “two or more convictions” must be interpreted with deference to the

recidivist philosophy underlying the statute, a philosophy that is made plain by

the graduated scheme of registration the legislature set forth, among other

statutory features. Id. Finally, the Majority holds that “the statute requires an act,

a conviction, and a subsequent act to trigger lifetime registration for multiple

offenses otherwise triggering a ten-year period of registration,” and affirms the

award of mandamus relief. Id. I join the Majority as to each of these points, but I

write separately to explain the full import, in my view, of the finding that Megan’s
Law II embodies a recidivist philosophy, and to explain that our holding does not

allow an individual whose first time convictions arise out of multiple first tier (42

Pa.C.S. § 9795.1(a) (repealed)) offenses to escape lifetime registration if the

circumstances otherwise warrant it.

       First, as this Court has explained, in several contexts, a statute

embodying a recidivist philosophy evinces a legislative intent “to punish more

severely offenders who have persevered in criminal activity despite the

theoretically beneficial effects of penal discipline.” See Commonwealth v. Shiffler,

879 A.2d 185 (Pa. 2005) (applying recidivist interpretation to three strikes

sentencing law and concluding that defendant’s prior plea of guilty to three

counts of burglary counted as only one prior offense); accord Commonwealth v.

McClintic, 909 A.2d 1241 (Pa. 2006) (again applying recidivist interpretation to

three strikes law); Commonwealth v. Jarowecki, 985 A.2d 955 (Pa. 2009)

(applying recidivist philosophy to prohibit sentence enhancement under

possession of child pornography statute for multiple simultaneous convictions).

       In each of the aforementioned cases, application of a recidivist philosophy

meant that “enhanced punishment [could not] be imposed unless all of the

defendant’s prior convictions preceded commission of the principal offense, and

each prior offense and conviction occurred in chronological sequence.”          See

Jarowecki, 985 A.2d at 962, n. 11 (quoting Cynthia L. Sletto, Annotation,

Chronological or Procedural Sequence of Former Convictions as Affecting

Enhancement of Penalty Under Habitual Offender Statutes, 7 A.L.R. 5th 263,

§ 2[a] (1992)). That is to say, “each offense, following the first, must have been




                        [J-36-2016] [MO: Dougherty, J.] - 2
committed after the defendant’s conviction of the immediately preceding offense.”

Id.

       Although a recidivist philosophy typically animates a purely penal statute,

it should be given the same effect where, as here, it underlies a statute with both

penal and non-penal consequences.              See Majority Op. at 18 (citing

Commonwealth v. Gehris, 53 A.3d at 878-79 (OISR)).                Furthermore, the

philosophy should be given its full effect regardless of whether a defendant is

charged for one act or multiple acts, regardless of whether the conduct

comprises a one criminal episode or many, and regardless of the number of

victims, direct or indirect.    Pursuant to a recidivist philosophy, an “offender is

deemed incorrigible not so much because he or she has sinned more than once,

but because the offender has demonstrated, through persistent criminal

behavior, that he or she is not susceptible to the reforming influence of the

conviction process.”      Shiffler, 879 A.2d at 195.     The Majority’s sequential

interpretation – requiring an act, followed by a conviction, followed by another act

– is faithful to this philosophy.

       Next, contrary to the Dissenting Opinion of Justice Todd (Dissenting Op.

(Todd, J.) at n.1), uniform application of the recidivist philosophy to the

registration statute does not afford an unwarranted “volume discount” to

registrants who have “sinned more than once.” See Shiffler, 879 A.2d at 195.

The Commonwealth’s discretion to bring multiple charges against a defendant,

and the trial court’s discretion to impose multiple sentences, which may run

consecutively as opposed to concurrently, if the trial court sees fit, ensures that a




                         [J-36-2016] [MO: Dougherty, J.] - 3
defendant will be punished based on the severity of his conduct and the quantity

of his acts. See, e.g., Commonwealth v. Davidson, 938 A.2d 198, 221 (Pa.

2007) (holding that “charging, trying, convicting and sentencing defendant for

multiple counts of possession of child pornography” is proper because each

image constitutes a distinct act and abuse of a child).

        Moreover, all registration-eligible offenders (including first tier offenders)

are required to undergo a sexually violent predator assessment. See 42 Pa.C.S.

§ 9795.4.1 Pursuant to the statute, anyone, after assessment, deemed to be a

sexually violent predator, even if he or she has been convicted of offenses that

otherwise trigger a ten-year registration period, is subject to life registration. See

42 Pa.C.S. § 9795.1 (repealed).2 This safeguard is consistent with the statute’s



1
    Section 9795.4 provides:

        (a) Order for assessment. -- After conviction but before
        sentencing, a court shall order an individual convicted of an offense
        specified in section 9795.1 (relating to registration) to be assessed
        by the board. The order for an assessment shall be sent to the
        administrative officer of the board within ten days of the date of
        conviction.

        (b) Assessment. -- Upon receipt from the court of an order for an
        assessment, a member of the board as designated by the
        administrative officer of the board shall conduct an assessment of
        the individual to determine if the individual should be classified as a
        sexually violent predator. The board shall establish standards for
        evaluations and for evaluators conducting the assessments. An
        assessment shall include, but not be limited to, an examination of
        the following [factors].

42 Pa.C.S. § 9795.4 (repealed).
2
    Section 9795.1 provides, in relevant part,
(continuedF)

                         [J-36-2016] [MO: Dougherty, J.] - 4
overall purpose and recidivist philosophy, reflected by its graduated registration

scheme, to subject to lifetime registration only the “more serious (primarily

violent) offenders and ‘true’ recidivists who squander a given opportunity to

reform.”   See Gehris, 53 A.3d at 878-79 (OISR).       Justice Todd’s view that

Section 9795.1(b)(1) cannot possibly apply solely to recidivists – because such

an interpretation would allow a serial, violent sex offender, who happens to

evade prosecution in between the commission of his criminal acts, to avoid

lifetime registration – is without merit, given the existence of Section

9795.1(b)(3). See Dissenting Op. (Todd, J.) at n.1.




(Fcontinued)
     (b) Lifetime registration.--The following individuals shall be
     subject to lifetime registration:

                                  *      *     *

             (3) Sexually violent predators.


42 Pa.C.S. § 9795.1 (repealed).



                       [J-36-2016] [MO: Dougherty, J.] - 5
