J-S44039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    CHARLES EDWARD BROOKS

                             Appellant               No. 365 WDA 2015


           Appeal from the Judgment of Sentence February 17, 2015
               In the Court of Common Pleas of Fayette County
             Criminal Division at No(s): CP-26-CR-0000386-2014


BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                          FILED MARCH 09, 2018

       Charles Edward Brooks’ appeal is before us pursuant to the Pennsylvania

Supreme Court’s order of January 3, 2018, which vacated our October 22,

2015 disposition and remanded for reconsideration in light of its decision in

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). After a consideration

of Muniz, we affirm in part and vacate and remand in part.

        On February 4, 2015, a jury convicted Brooks of eight counts of sexual

offenses against a female victim, and one count of corruption of minors

(sexual nature) against a male victim.1 The female victim testified that the


____________________________________________


1 Brooks was convicted of the following offenses (all but count 8 were against
the female victim):
J-S44039-15



sexual offenses against her occurred over a period of approximately five years,

from 2002 to 2007, when she was between the ages of five and ten. The

offense against the male victim occurred prior to the spring of 2013.2

       President Judge John F. Wagner sentenced Brooks on February 17,

2015, to a total term of imprisonment of six to twelve years. Brooks was

classified as a Tier III offender under the Sexual Offender Registration and

Notification Act (“SORNA”), 42 Pa.C.S. §§ 9799.10–9799.41, and ordered to

undergo lifetime registration with the Pennsylvania State Police as a sexual


____________________________________________


       Count 1 – Involuntary Deviate Sexual Intercourse, 18 Pa.C.S. §
       3123(a).

       Count 2 – Involuntary Deviate Sexual Intercourse (victim under age
       13), 18 Pa.C.S. § 3123(b).

       Count 3 – Aggravated Indecent Assault-Child, 18 Pa.C.S. § 3125(b).

       Count 4 – Aggravated Indecent Assault, 18 Pa.C.S. § 3125.

       Count 5 - Endangering Welfare of Children, 18 Pa.C.S. § 4304(b).

       Count 6 – Corruption of Minors (sexual nature), 18 Pa.C.S.        §
       6301(a)(1).

       Count 7 – Indecent Assault (victim under age 13), 18 Pa.C.S. §
       3126(a)(7).

       Count 8 – Corruption of Minors (sexual nature), 18 Pa.C.S. §
       6301(a)(1).

       Count 9 – Indecent Assault – 18 Pa.C.S. § 3126(a).
2 The male victim was eight years old at the time of trial in February 2015.
The report to the Pennsylvania State Police was made in May 2013. The male
victim’s testimony was unclear on the specific year Brooks showed him
pornographic pictures.



                                           -2-
J-S44039-15



offender.3 Brooks appealed, challenging the constitutionality of the lifetime

registration requirement and the sufficiency of the evidence supporting his

convictions, as follows:

          1. Is it unconstitutional to require an appellant to register for
             a lifetime when said registration requirement exceeds the
             statutory maximum penalty for appellant’s offense?

          2. Is the Adam Walsh statute unconstitutional in requiring an
             appellant to register for a lifetime?

          3. The Commonwealth failed to prove beyond a reasonable
             doubt appellant had any inappropriate contact with the
             victim in the present case;

          4. The Commonwealth failed to prove beyond a reasonable
             doubt that appellant engaged in any activity tending to
             corrupt the minor victim by showing him inappropriate
             magazines or photos;

          5. Did the Commonwealth fail to prove beyond a reasonable
             doubt that the appellant had any unlawful contact with the
             minor victim since there was no physical evidence presented
             in the instant case?

Appellant’s Brief, at 7 (renumbered for ease of discussion).        Because the

Muniz decision renders SORNA an unconstitutional ex post facto law as

applied to Brooks, we need not address his specific claims in issues one and

two.



____________________________________________


3 Under SORNA, persons convicted of involuntary deviate sexual intercourse,
18 Pa.C.S. § 3123, aggravated indecent assault, 18 Pa.C.S. § 3125, or
indecent assault of a person less than thirteen years of age, 18 Pa.C.S. §
3126(a)(7), are categorized as Tier III offenders and are required to register
as sex offenders for the remainder of their lives. See 42 Pa.C.S. §§
9799.14(d)(4), (d)(7), and (d)(8), 9799.15(a)(3).

                                           -3-
J-S44039-15



       In Muniz, the defendant was convicted in 2007 of two counts of

indecent assault. He was scheduled for sentencing later that year, “at which

time he would have been ordered to register as a sex offender with the

Pennsylvania State Police for a period of ten years pursuant to then-effective

Megan’s Law III.”       Muniz, 164 A.3d at 1192 (citing 42 Pa.C.S. § 9795.1

(expired)). Before he could be sentenced, however, Muniz absconded; it was

not until 2014 that he was apprehended and later sentenced. Id.         At his

sentencing in 2014, Muniz was ordered to comply with the lifetime registration

provisions under the then-enacted SORNA, which had replaced Megan’s Law

III in his absence.4 Muniz filed post-sentence motions, seeking application of

the ten-year registration period under Megan’s Law III, which was the law at

the time he committed his offenses and was convicted, instead of lifetime

registration under SORNA. The trial court denied that motion and, on appeal

____________________________________________


4 On December 20, 2011, the legislature replaced Megan’s Law III with
SORNA, effective December 20, 2012, to strengthen registration requirements
for sex offenders and to bring Pennsylvania into compliance with the Adam
Walsh Child Protection and Safety Act, 42 U.S.C.A. § 16901, et seq.
Commonwealth v. Sampolski, 89 A.3d 1287, 1288 (Pa. Super. 2014).
Section 9799.14 of SORNA establishes a three-tiered system of specifically
enumerated offenses requiring registration for sexual offenders for differing
lengths of time. Id. Pursuant to section 9799.15(a)(1), a person convicted of
a Tier I offense must register for 15 years. A Tier II offender must register
for 25 years, while a Tier III offender must register for the remainder of his
or her life. 42 Pa.C.S. § 9799.15(a)(2), (a)(3). See supra, note 3.          A
sexually violent predator (SVP) requires lifetime registration. See 42 Pa.C.S.
§§ 9799.14, 9799.15(d). See also 42 Pa.C.S. § 9799.15(a)(6) (“A sexually
violent predator shall register for the life of the individual.”).




                                           -4-
J-S44039-15



to this Court, Muniz argued, inter alia, that retroactive application of SORNA

violates the ex post facto clauses of the United States and Pennsylvania

Constitutions.       This   Court    affirmed    Muniz’s   judgment   of   sentence.

Commonwealth v. Muniz, No. 2169 MDA 2014 (unpublished memorandum,

Pa. Super. filed August 7, 2015).

       On appeal, our Supreme Court reversed this Court’s decision and

vacated the portion of the sentence requiring Muniz to comply with SORNA.

Five of the six participating justices held that SORNA’s enhanced registration

provisions constitute punishment, notwithstanding the General Assembly’s

identification of the provisions as nonpunitive,5 Muniz, 64 A.3d at 1218, and

further, determined that retroactive application of SORNA’s registration

provisions violates the ex post facto clause of the Pennsylvania Constitution.6
____________________________________________


5 See Declaration of Policy, 42 Pa.C.S. § 9799.11(b)(2) (“It is the policy of
the Commonwealth to require the exchange of relevant information about
sexual offenders among public agencies and officials and to authorize the
release of necessary and relevant information about sexual offenders to
members of the general public as a means of assuring public protection and
shall not be construed as punitive.”). See also Legislative Findings, 42
Pa.C.S. § 9799.11(a)(2) (“This Commonwealth’s laws regarding registration
of sexual offenders need to be strengthened. The Adam Walsh Child
Protection and Safety Act of 2006 provides a mechanism for the
Commonwealth to increase its regulation of sexual offenders in a manner
which is nonpunitive but offers an increased measure of protection to the
citizens of this Commonwealth.”).

6 Article I, Section 17 of the Pennsylvania Constitution provides: “No ex post
facto law, nor any law impairing the obligation of contracts, or making
irrevocable any grant of special privileges or immunities, shall be passed.” Pa.
Const., art. I, § 17. The Muniz Court noted that Muniz’s seven-year absence
from the Commonwealth did not affect its decision; had Muniz been sentenced



                                           -5-
J-S44039-15



Id. at 1218-19.      Thus, the binding precedent arising out of Muniz is limited

to the finding that SORNA’s registration requirements violate the Ex Post Facto

Clause of the Pennsylvania Constitution.7 See Commonwealth v. Hart, 174

A.3d 660, 666 n. 9 (Pa. Super. 2017).8

       We reconsider this case in light of Muniz mindful of the following:

       Critical to relief under the ex post facto clause is not an individual’s
       right to less punishment, but the lack of fair notice and
       governmental restraint when the legislature increases punishment
       beyond what was prescribed when the crime was consummated.
       Based on these concerns, [in Calder v. Bull, 3 U.S. 386 (1798),]
       Chief Justice Chase set out four categories of laws that violate
       such prohibitions:




____________________________________________


in 2007 and subject to registration under Megan’s Law III, pursuant to section
9799.13 of SORNA, his ten-year registration period would have converted to
a lifetime registration period when SORNA became effective. Muniz, 64 A.3d
at 1193 n.3.
7 Although a plurality Opinion Announcing the Judgment of the Court (“OAJC”)
has no precedential value, “where a concurring opinion enumerates the
portions of the plurality’s opinion in which the author joins or disagrees, those
portions of agreement gain precedential value.” Commonwealth v. Brown,
23 A.3d 544, 556 (Pa. Super. 2011). In Muniz, the OAJC found that SORNA
violates the ex post facto clauses under both the Pennsylvania and United
States Constitutions. Justice Wecht’s Concurring Opinion, joined by Justice
Todd, found that SORNA violates the Pennsylvania Constitution and declined
to consider whether SORNA violates the United States Constitution.

8  Additionally, since the Muniz Court determined the registration
requirements were punitive, this Court later held that a portion of SORNA’s
framework for designating a convicted defendant an SVP, 42 Pa.C.S. §
9799.24(e)(3), was unconstitutional. See Commonwealth v. Butler, 173
A.3d 1212, 1218 (Pa. Super. 2017) (holding section 9799.24(e)(3) of SORNA
unconstitutional as it “specifies clear and convincing evidence as the burden
of proof required to designate a convicted defendant as an SVP.”).

                                           -6-
J-S44039-15


         1st. Every law that makes an action done before the passing
         of the law, and which was innocent when done, criminal;
         and punishes such action. 2nd. Every law that aggravates a
         crime, or makes it greater than it was, when committed.
         3rd. Every law that changes the punishment, and
         inflicts a greater punishment, than the law annexed
         to the crime, when committed. 4th. Every law that alters
         the legal rules of evidence, and receives less, or different,
         testimony, than the law required at the time of the
         commission of the offense, in order to convict the offender.

      Furthermore, two critical elements must be met for a criminal or
      penal law to be deemed ex post facto: it must be retrospective,
      that is, it must apply to events occurring before its enactment,
      and it must disadvantage the offender affected by it. As such,
      [o]nly those laws which disadvantage a defendant and fall within
      a Calder category are ex post facto laws and constitutionally
      infirm. The ex post facto clauses of the United States and
      Pennsylvania Constitutions are implicated here because a holding
      rendering the effects of SORNA’s registration requirements
      punitive would place the statute into the third Calder category:
      application of the statute would inflict greater punishment on
      appellant than the law in effect at the time he committed his
      crimes.

Muniz, 164 A.3d at 1195–96 (quotation marks, unnecessary capitalization,

and some citations omitted) (emphasis added). “The Muniz Court held that

Pennsylvania’s SORNA is an unconstitutional ex post facto law when applied

retroactively to those sexual offenders convicted of applicable crimes before

the act’s effective[] date and subjected to increased registration requirements

under SORNA after its passage.” Commonwealth v. McCullough, 174 A.3d

1094, 1095 (Pa. Super. 2017); Commonwealth v. Hart, supra.

      As in Muniz, the Ex Post Facto Clause of the Pennsylvania Constitution

is implicated here because application of SORNA’s registration requirements

would inflict greater punishment on Brooks than the law in effect at the time


                                     -7-
J-S44039-15



he committed his crimes. Muniz, supra. “Critical to relief under the ex post

facto clause is not an individual’s right to less punishment, but the lack of fair

notice and governmental restraint when the legislature increases punishment

beyond what was prescribed when the crime was consummated.” Muniz, 164

A.3d at 1195.     SORNA became effective on December 20, 2012, prior to

Brooks’ conviction and sentencing, but after he committed the instant

offenses. SORNA enhanced registration requirements for Tier III offenses,

including quarterly in-person reporting and dissemination of personal

information via an Internet website.     Muniz, 164 A.3d at 1210-11, (citing

Commonwealth v. Perez, 97 A.3d 747, 765 (Pa. Super. 2014) (Donohue, J.

concurring)).   These additional, more stringent registration requirements

constitute a greater punishment than what would have been imposed under

the law in effect at the time the crimes were committed, in particular, Megan’s

Law II, and Megan’s Law III.        As such, retroactive application of these

enhanced registration requirements runs afoul of constitutional ex post facto

prohibitions. See Muniz, 164 A.3d at 1193, 1216

      Because Brooks committed his crimes at a time when registration and

reporting requirements for individuals who committed his offenses were less

onerous, and thus the punishment was less, SORNA cannot be applied

retroactively to Brooks without violating the Ex Post Facto Clause of the

Pennsylvania Constitution. See Muniz, 164 A.3d at 1192-93. Thus, we are

constrained to conclude that Brooks is not required to register under SORNA.




                                      -8-
J-S44039-15



        Our reconsideration in light of Muniz does not alter our prior disposition

of Brooks’ three claims raising sufficiency of the evidence challenges. Based

on our review of the parties’ briefs, the relevant case law and the certified

record on appeal, we dispose of Brooks’ first three claims based on President

Judge Wagner’s opinion. We attach a copy of that decision in the event of

further proceedings in the matter.             With respect to his final two claims,

challenging the constitutionality of the registration requirements, we remand

in accordance with Muniz.9

        We vacate that portion of Brooks’ sentence requiring him to comply with

SORNA. The remainder of his judgment of sentence is affirmed. Jurisdiction

relinquished.

        Judge Jenkins did not participate in the consideration or decision of this

case.


____________________________________________


9 We note that this case presents the anomalous situation where the laws in
effect at the time of Brooks’ offenses, Megan’s Law II (Act of May 10, 2000,
P.L. 74, No. 18, as amended, 42 Pa.C.S. §§ 9791–9799.9, (repealed and
replaced)) and Megan’s Law III (Act of May 10, 2000, P.L. 74, No. 18 (formerly
codified at 42 Pa.C.S.A. §§ 9791–99.9)), have been repealed and replaced, in
the case of Megan’s Law II, or expired on December 20, 2012 and replaced
by SORNA, see 42 Pa.C.S.A. § 9799.41, and the current law (SORNA) is
unconstitutional as applied to Brooks. We also note that the offense against
the male victim, corruption of minors-sexual nature, 18 Pa.C.S. § 6301(a)(1),
is a Tier I offense, 42 Pa.C.S. 9799.14(b)(8), requiring registration for a period
of fifteen years. 42 Pa.C.S. § 9799.15(a)(1). Although this would not be an
unconstitutional application of SORNA, we do not find the evidence that this
offense in fact occurred on or after the effective date of SORNA was
established beyond a reasonable doubt. The male victim’s testimony as to
timing is vague at best, and it establishes only that the offense occurred
sometime prior to the spring of 2013.

                                           -9-
J-S44039-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2018




                          - 10 -
                                                                                       Circulated 02/20/2018 04:18 PM




           IN THE COURT OF COMMON PLEAS OF FAYETTE COUNTY, PENNSYLVANIA
                                --TRIMINAL. DIVISION
                                '   ''    I




  COMMONWEALTH OF PENNSYLVANIA

                     vs,
   .   .




  CHARLES BROOKS                                           :   No, 386 of 2014

                            Defendant




                                              OPINION AND ORDER

 WAGNER, P.J.

            Before the Court is Defendant's Concise Statement of Issues on Appeal listing five

 grounds on which he is seeking relief:       (l) Insufficient evidence that he had any inappropriate

 contact with the victim; (2) Insufficient evidence that he showed the victim inappropriate

magazines or photos; (3) Insufficient evidence that Defendant had any unlawful contact with the

victim; (4) Unconstitutionality      of the requirement for lifetime registration for a defendant such as

he; and (5) Unconstitutionality of the Adam Walsh statute which requires lifetime registration.

           The Defendant has been convicted by a jury of the following nine offenses: Involuntary

Deviate Sexual Intercourse, IDSI forcible compulsion; Involuntary Deviate Sexual Intercourse

with a person less than thirteen years of age; Aggravated Indecent Assault forcible compulsion;

Aggravated Indecent Assault with a person less than thirteen years of age; Endangering the

Welfare of Children; Corruption of Minors; Indecent Assault with a person less than thirteen

years of age; Corruption of Minors, magazines, two victims; Indecent Assault forcible

compulsion contact. The trial evidence may be summarized as follows:


                                                      1
             The first witness, Cl         C.            eighteen years old at the time of the trial,
                                                                                                      testified
    that She laieWDeletidatirasiChnakieMOstOher Tie
                                                    because he was Ms. C

    stepgrandmother's son, and he resided with his mother. N.T. pp. 6-7.
                                                                         When Ms.                       C.            was
   between the ages of five and ten years old, her
                                                   stepgrandmother, V.                     Br           ,   was her
   caretaker while her mother, father, or stepfather were
                                                          working. Id. p. 8. While the child was at
   her stepgrandmother's house, Defendant would
                                                take her up to his bedroom and showed her

   pornographic magazines with naked men and women engaging in
                                                               sexual intercourse. Id. p.9.
   Sometimes Defendant would then remove her clothing and
                                                          touch the young girl's chest and
  vagina with his fingers. Kt. pp. 10-11. The touching
                                                       later progressed to "dry humping" her while

  her clothes were on. Id. Such activity brought
                                                 Defendant's penis into contact with the victim's
  pelvic area. Id. p. 15. Eventually, Defendant once forced her
                                                                head down on his penis after he had
  removed the child's clothing. Id. Some years later, when she
                                                               was sixteen years old, she finally
 told her stepmother's niece about the sexual abuse, Id.
                                                         p. 13, and later told her stepmother
                                                                                              after
 her stepmother asked about it. Id. p. 21.

          Ms. C.        .   :s halfbrother, G.     13k           age eight years and in the third grade, told

 the jury that he knows Defendant as "Uncle Chuckie."
                                                      Id. pp. 31, 37.               0       ;   stated that
 Defendant would show him magazines with pictures of naked
                                                            women sometimes when he went
to his grandmother's house. Id. p. 38. Although C.   'a grandmother was in the house, he and

Defendant would go to a different part away from where she was.
                                                                Id. C                      first told his
mother about the pictures. Id. p. 40. Pennsylvania State Trooper
                                                                   Thomas Hartley testified that
during his investigation of this matter, he had ascertained
                                                            that Defendant's date of birth is August
19, 1956;   G..     C            is birthdate is January     ,   1997, and G         13(        I's   date of birth
is July     2006, Id. p.15, and had also determined that the crimes
                                                                    occurred at 130 Palmer Adah


                                                     2
   Road, Luzerne Township, Fayette County. Id. Commonwealth witness,
                                                                     Desiree Patterson, a
   forensic InterVieviel'at A -Child's Place at .Merey, 1515.Loctist.Streer,
                                                                             Pittsburgh; testified
   concerning her interviews with both                   C         and C         B
                                                     ,
                                                               .
                                                                                            Id. p. 61. Ms.

  Pattersons's testimony generally confirmed that of both victims in that Ms. G
                                                                                                       related to
  her that Defendant had shown her pornographic pictures; digitally
                                                                    penetrated her vagina, and
  forced her to perform oral sex on him one time, Ld.-pp. 68-72, while
                                                                       Cn-i            ,,   told her that
  Defendant had shown him pictures of naked women. Id. pp. 62-63...

          In evaluating a challenge to the sufficiency of the
                                                              evidence, the Court must consider the
  trial evidence in the light most favorable to the Commonwealth as verdict
                                                                            winner; giving it the
 benefit of all reasonable inferences based on that evidence.
                                                              Commonwealth v. Walker, 839 A.2d
 999 (Pa.Super. 2003). Clearly, the trial testimony as summarized above
                                                                        is quite sufficient to

 refute Defendant's first three claims of insufficiency for purposes of this appeal.

         As to Defendant's two claims concerning the unconstitutionality
                                                                         of the length of the sex
 offender registration requirements and the "Adam Walsh" statute which mandates
                                                                                the said

 registration, the Sexual Offender Registration and Nortification Act (SORNA),
                                                                               such provisions
are non -punitive and arc intended to advance and protect public safety.
                                                                         See Commonwealth v.

McDonough, 96 A.3d 1067 (Pa.Super. 2014). The registration period of twenty-five
                                                                                 years does
not constitute an illegal sentence, but is rather a collateral
                                                               consequence of his convictions, See Id.
The constitutionality of any statute is purely   a   question of law, and   a   declaration that a properly
enacted legislative statute is not constitutional is generally beyond the authority of
                                                                                       the Court of

Common Pleas. However, it is well -settled that when a statute imposes a consequence
                                                                                     on a
defendant for reasons other than punishment, it is considered as non -penal and not
                                                                                    within the
purview of the Eighth Amendment of the United States Constitution. See Trop v.
                                                                               Dulles, 356



                                                         3
  U.S. 86 (1958). As already stated,
                                     McDonough, supra., held that SORNA's goal is the
                                                                                      non-
 -punntive effectuation of public- safety::- Thus., it
                                                       is-notpunishmentfor the purposes of the Eighth
 Amendment or under Article I, Section 13 of the
                                                         Pennsylvania Constitution, and does not violate
  the prohibitions against cruel and unusual
                                             punishment in either.

           For thQforegoillgyeasons,.   is respectfulltsuggesied. that.D.efendant's
                                                                                    appeal should be
 denied.




                                                   .BYTHEC(



                                                                                        ,   P.J.
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