J-S16023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

LEONARDO YORGARDY

                            Appellee                    No. 640 EDA 2015


            Appeal from the Judgment of Sentence January 30, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0006899-2014


BEFORE: OTT, J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                                  FILED APRIL 28, 2016

        The Commonwealth appeals from the judgment of sentence imposed

on Leonardo Yorgardy,1 on January 30, 2015, in the Court of Common Pleas

of Philadelphia County. On August 26, 2014, Yorgardy entered into an open

guilty plea to a single count of sexual abuse of children (dissemination of

child pornography), and two counts of sexual abuse of children (possession

of child pornography).2        All counts were third-degree felonies.   Yorgardy

received an aggregate sentence of two years of probation. Pursuant to the

____________________________________________


1
  The defendant is referred to throughout the certified record as both
Yorgardy Leonardo and Leonardo Yorgardy. Although he signed his name on
multiple documents as Yorgardy Leonardo, his counsel asserted Yorgardy is
his last name. See N.T. Sentencing, 1/30/2015, at 5. Accordingly, we will
use Leonardo Yorgardy.
2
    18 Pa.C.S. § 6312(c), (d).
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Pennsylvania Sex Offender Registration and Notification Act (SORNA), 42

Pa.C.S. § 9799.10 et seq., the trial court classified Yorgardy as a Tier II

offender, requiring a 25 year registration period. The Commonwealth raises

one issue in this timely appeal; it claims the trial court erred in not

classifying Yorgardy as a Tier III offender, thereby requiring a lifetime

registration.    After a thorough review of the Commonwealth’s brief, 3 the

certified record, and relevant law, we reverse only that portion of the

judgment of sentence regarding sexual offender registration.             We remand

and direct the trial court to enter an order classifying Yorgardy as a Tier III

sexual offender.

        At issue in this appeal is the proper statutory interpretation of a single

sentence in 42 Pa.C.S. § 9799.14 regarding “Sexual offense and tier

system.” Specifically, we address the following provision:

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

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

42 Pa.C.S. § 9799.14(d)(16).

        Initially we note that a question of statutory interpretation:

        is a pure question of law; thus our standard of review is de novo,
        and our scope of review is plenary. In re Milton Hershey
        School, 590 Pa. 35, 42, 911 A.2d 1258, 1261 (2006). When this
        Court is called upon to interpret a statute, our overriding
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3
    No brief was filed on behalf of Yorgardy.



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      purpose is to ascertain and effectuate the legislative intent
      underlying the statute. Commonwealth v. Fedorek, 596 Pa.
      475, 483, 946 A.2d 93, 98 (2008). The clearest indication of
      legislative intent is the plain language of the statute itself. Id. In
      addressing Appellant's challenge, we are guided by the principles
      set forth in the Statutory Construction Act. 1 Pa.C.S. §§ 1501 et
      seq. We must consider that when the words of a statute “are
      clear and free from all ambiguity, the letter of it is not to be
      disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. §
      1921(b). Further, in ascertaining legislative intent, it is to be
      presumed “[t]hat the General Assembly does not intend to
      violate the Constitution of the United States or of this
      Commonwealth.” 1 Pa.C.S. § 1922(3).

Commonwealth v. Samuel, 961 A.2d 57, 60-61 (Pa. 2008).

      As noted above, Yorgardy pled guilty to three third degree felonies

regarding the possession and distribution of child pornography. See 18

Pa.C.S. § 6312(d.1)(2)(i). He had no prior criminal record.       Pursuant to 42

Pa.C.S. § 9799.14, 18 Pa.C.S. § 6312(d), possession of child pornography,

is a Tier I sexual offense, and Section 6312(c) is classified as a Tier II sexual

offense. A person with two or more convictions of Tier I or Tier II sexual

offenses is classified as a Tier III sexual offender.     Tier I offenders must

register for a 15 year period, Tier II offenders must register for a 25 year

period, and Tier III offenders face a lifetime registration requirement.

      The question currently before us is, when an offender is found guilty

(either by trial or plea) of two or more Tier I or II offenses at the same trial

or plea hearing, is the offender properly classified as Tier II or III? Here, the

trial court found the relevant statutory language,

      “embodies the recidivist philosophy and reflects a belief that
      first-time and lesser offenders are capable of reform and
      rehabilitation if given the opportunity to do so under the still-

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       punitive aegis of relatively lighter discipline, as well as the threat
       of    harsher     treatment”      should      Defendant      reoffend.
       [Commonwealth v.] Gehris, 54 A.3d [862] at 879 [(Pa.
       2012)].

Trial Court Opinion, 9/17/2015, at 10.4

       The last published opinion addressing this issue was Commonwealth

v. Merolla, 909 A.2d 337 (Pa. Super. 2006), which interpreted Megan’s Law

II.   The Office of the Attorney General, on behalf of the Commonwealth,

argues Merolla is the controlling decision and requires Yorgardy be subject

to the Tier III lifetime registration requirement.

       As referred to above, the statutory requirements for the registration of

sexual offenders have gone through several changes, including three

versions of Megan’s Law prior to the current SORNA. While the laws have

changed throughout the years, the statutory language currently at issue has

not. As related in Merolla,

       The salient portion of the statue provides: “[a]n individual with
       two or more convictions of any of the offenses set forth in
       subsection (a)” shall be subject to a lifetime registration. 42
       Pa.C.S.A. § 9795.1(b)(1).

____________________________________________


4
  Gehris involved the interpretation of one of the prior versions of SORNA,
specifically, Megan’s Law III. The portion of Gehris quoted by the trial court
was taken from Chief Justice Castille’s Opinion in Support of Reversal
(OISR). The Gehris decision was an equally divided decision that let stand
the Superior Court determination that a person convicted of two reportable
offenses at the same time was properly subject to lifetime registration. As
an evenly divided decision, it has no precedential value.                 See
Commonwealth v. Covil, 378 A.2d 841, 844 (Pa. 1977) (equally divided
decision has no precedential value).




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Commonwealth v. Merolla, 909 at 346 (Pa. Super. 2006).

      Under SORNA, a lifetime registration is applied to an individual with

“[t]wo or more convictions of offenses listed as Tier I or Tier II sexual

offenses.” 42 Pa.C.S. § 9799.14(d)(16).      Whatever changes the General

Assembly made to the different versions of the statutes, it kept the language

relevant to this appeal identical.   In analyzing this relevant language, the

Merolla opinion stated:

      The Court analyzed the legislature's intent in enacting Megan's
      Law II, and found the policy underlying registration and
      notification to be the promotion of public safety. Id. at 972
      (quoting Commonwealth v. Gaffney, 557 Pa. 327, 733 A.2d
      616, 619 (1999)). “[T]he legislature's stated intent was to
      provide a system of registration and notification so that relevant
      information would be available to state and local law
      enforcement officials in order to protect the safety and general
      welfare of the public.” Williams II, supra at 972 (quoting
      Gaffney, supra at 619). Neither the registration nor notification
      component of Megan's Law II is considered additional
      punishment. Williams II, supra at 973 (quoting Gaffney,
      supra at 619).

      The salient portion of the statute provides: “[a]n individual with
      two or more convictions of any of the offenses set forth in
      subsection (a)” shall be subject to lifetime registration. 42
      Pa.C.S.A. § 9795.1(b)(1). However, the Three Strikes Statute
      applies “[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).
      Thus, the language of Megan's Law II is distinguishable from the
      language of the Three Strikes Statute as Megan's Law II does
      not require a previous conviction. Moreover, the legislative intent
      behind Megan's Law II is distinct from that of the Three Strikes
      Statute. Whereas Megan's Law II is based on concern for public
      safety, the Three Strikes Statute, although it also implicates
      public safety, is directed to heightening punishment for criminals
      who have failed to benefit from the effects of penal disciple, see


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     id. at 196, while Megan's Law II. See Williams II, supra at
     973; Shiffler, supra at 196.

     The sequence of events described in Shiffler—first offense, first
     conviction, first sentencing, second offense, second conviction,
     second sentencing—does not apply to Megan's Law II based on a
     literal reading of the statute. Compare Shiffler, supra at 192,
     with 42 Pa.C.S.A. §§ 9791-9799. Thus, it is irrelevant that
     Merolla had not been sentenced for his first offense before the
     commission of his second crime. See Williams II, supra at
     972. Moreover, the intent of the legislature is better served by
     subjecting Merolla to heightened registration requirements
     because the public would continue to be notified of his
     whereabouts after the initial ten-year registration period. As
     already stated, this heightened registration is not an additional
     punishment. See id. at 973.

Commonwealth v. Merolla, 909 A.2d at 346-47 (footnotes omitted).

     Although Merolla interpreted a prior version of SORNA, we are

nonetheless bound by that interpretation.

     It is a long-standing presumption that the Legislature is aware of
     the judiciary's construction and interpretation of statutes. See,
     e.g., City of Philadelphia v. Clement & Muller, Inc., 552 Pa.
     317, 715 A.2d 397, 399 (1998). Furthermore,

        [w]hen     confronted    with   questions    of     statutory
        construction, the words of a statute are to be interpreted
        in light of antecedent case law.... The failure of the
        General Assembly to change the law which has been
        interpreted by the courts creates a presumption that the
        interpretation was in accordance with the legislative intent;
        otherwise the General Assembly would have changed the
        law in a subsequent amendment.
     Fonner v. Shandon, Inc., 555 Pa. 370, 724 A.2d 903, 906
     (1999) (internal citations omitted); see also 1 Pa.C.S.A. §
     1922(4) (“In ascertaining the intention of the General Assembly
     in the enactment of a statute[, it may be presumed] ... [t]hat
     when a court of last resort has construed the language used in a
     statute, the General Assembly in subsequent statutes on the
     same subject matter intends the same construction to be placed
     upon such language.”).

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Commonwealth v. Spenny, 128 A.3d 234, 249-50 (Pa. Super. 2015).5

       Accordingly, pursuant to the rules of statutory construction, we are

required to follow the dictates of Commonwealth v. Merolla regarding the

interpretation and application of 42 Pa.C.S. 9799.14(d)(16). 6       Because
____________________________________________


5
 Spenny is essentially a reiteration of the presumption discussed in In re
Estate of Mike Lock, which stated:

       The Statutory Construction Act, Act of May 28, 1937, P.L. 1019,
       art. IV, s 52, 46 P.S. s 552 provides in part as follows: ‘In
       ascertaining the intention of the Legislature in the enactment of
       a law, the courts may be guided by the following presumption
       among others: * * * (4) That when a court of last resort has
       construed the language used in a law, the Legislature in
       subsequent laws on the same subject matter intend (sic) the
       same construction to be placed upon such language; * * *’ It
       has been held, and rightly so, that where a decision of the
       Superior Court construing a statute was never modified by the
       Supreme Court, the presumption was that when the legislature
       subsequently enacted a similar statute dealing with the same
       subject matter, the legislature intended the same construction to
       be placed on the language of the subsequent statute.

In re Estate of Mike Lock, 244 A.2d 677, 682-83 (Pa. 1968) (citations
omitted). (This case is also referred to as In re Lock’s Estate.)

6
  We are aware of at least two unpublished decisions of our Court that have
reached the same conclusion: Commonwealth v. Taylor, 2015 WL
7012589 (June 2, 2015) (unpublished memorandum) and Commonwealth
v. Mielnicki, 53 A.3d 930 (Pa. Super. 2012 (unpublished memorandum).
Our Supreme Court accepted allowance of appeal in Mielnicki, but later
dismissed the appeal as improvidently granted. See Commonwealth v.
Mielnicki, 105 A.3d 245 (Pa. 2013).

       Similarly, we are aware that the Commonwealth Court reached a
different conclusion, agreeing with Justice Castile’s OISR in Gehris, supra.
See A.S. v. Pennsylvania State Police, 87 A.3d 914 (Pa. Cmwlth. 2014).
(Footnote Continued Next Page)


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Yorgardy has been convicted of two or more Tier I or Tier II sexual offenses,

he is subject to the Tier III requirements of a lifetime registration.

      We conclude the trial court erred in its determination that Yorgardy is

subject to Tier II registration requirements.     Accordingly, we reverse the

judgment of sentence solely as to the trial court’s determination that

Yorgardy is a Tier II offender, and remand for entry of an order reclassifying

Yorgardy as a Tier III offender, subject to lifetime registration.

      Judgment of sentence reversed as to the sexual offender classification.

Matter remanded for action consistent with this decision.            Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/28/2016




                       _______________________
(Footnote Continued)

The majority decision in A.S. made no mention of our Court’s decision in
Merolla. The dissent in A.S. did mention Merolla and would have followed
that reasoning. However, while decisions of the Commonwealth Court may
be considered by our Court for their persuasive value, they are not binding
upon the Superior Court. See Commonwealth v. Heredia, 97 A.3d 392,
395 n.4 (Pa. Super. 2014).



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