J-A09016-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSEPH BORIS ZINNER                        :
                                               :
                       Appellant               :   No. 79 WDA 2019

         Appeal from the Judgment of Sentence Entered August 8, 2018
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                           CP-25-CR-0001633-2017

BEFORE:      SHOGAN, J., MURRAY, J., and STRASSBURGER, J.*

MEMORANDUM BY MURRAY, J.:                                  FILED MAY 22, 2020

        Joseph Boris Zinner (Appellant) appeals from the judgment of sentence

imposed after a jury convicted him of indecent assault (without consent).1 For

the reasons that follow, we affirm.

        The trial court summarized the underlying facts and procedural history:

           The conviction arose from Appellant’s actions in engaging in
        indecent contact with the victim [(Victim)] without her consent on
        September 5, 2016. It is uncontroverted [that Victim] and her
        housemates, college students at Mercyhurst University, engaged
        in a day of partying and drinking on September 4, 2016. On the
        evening of September 4, 2016, Appellant, a fellow student at
        Mercyhurst, met up with [Victim] and housemates at the
        Cornerstone Bar and Grill where additional socializing and drinking
        occurred.    Shortly after midnight, [Victim], housemates, a
        housemate’s boyfriend, and Appellant proceeded to the [women]’s
        residence. [Victim] went to her bedroom and got in bed without
        changing out of her clothes. After a housemate checked on her,
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 3126(a)(1).
J-A09016-20


       gave her a blanket, and turned off her light, [Victim] freely
       admitted she passed out. She awoke to find Appellant on top of
       her. Her clothing had been removed and Appellant was sucking
       at her neck and breasts and digitally penetrating her. As Appellant
       began to perform oral sex on her[,] she asked him to leave and
       she passed out again.

          [On December 22, 2017, following a three-day jury trial, the
       jury found Appellant guilty of indecent assault (without consent).
       The jury acquitted him of the charges of indecent assault
       (unconscious victim), aggravated indecent assault (without
       consent), and aggravated indecent assault (unconscious victim).]

          On January 5, 2018, Appellant filed a Motion to Set Aside
       Verdict, Judgment of Acquittal and/or New Trial. On July 19,
       201[8], the motion for post-trial relief was denied for the reasons
       set forth at the hearing on July 18, 201[8].

          On August 8, 2018, Appellant was sentenced to two years of
       probation. At sentencing, Appellant was advised of his duty to
       register for a period of fifteen years as a Tier I sex offender
       pursuant to 42 Pa.C.S.A. [§] 9799.15(a)(1). See Sentencing
       Transcript, [8/8/18, at 4-7]. Appellant was determined to not be
       a sexually violent predator (SVP).[2]

          On August 17, 2018, Appellant filed a post-sentence motion.
       In the post-sentence motion, Appellant claimed the verdicts
       [were] inconsistent. Appellant challenged the sufficiency and
       weight of the evidence to sustain the guilty verdict at Count One.
       In the post-sentence motion, Appellant also challenged the
       constitutionality of SORNA’s registration requirement. On August
       23, 2018, the [trial c]ourt directed the Commonwealth to file a
       written response to the motion.

          On September 5, 2018, Appellant signed a notification to
       register as a sex offender. On September 24, 2018, Appellant
____________________________________________


2 We acknowledge that recently, our Supreme Court held that the registration,
notification, and reporting (RNC) requirements “applicable to SVPs do not
constitute criminal punishment,” and therefore, the procedural mechanism in
Pennsylvania for designating sex offenders as SVPs set forth in 42 Pa.C.S.A.
§ 9799.24 is constitutional. Commonwealth v. Butler, ___ A.3d ___, 25
WAP 2018, 2020 WL 1466299, at *15 (Pa. Mar. 26, 2020).

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J-A09016-20


      filed a Petition to Supplement Post-Sentence Motion, seeking
      permission to supplement this record with Exhibits “A” through “F”
      (consisting of 145 pages) of an unrelated case from another
      county wherein that trial court found Subchapter H of the Sexual
      Offender’s Registration Act to be unconstitutional. See Petition to
      Supplement Post-Sentence Motion, ¶ 7. On September 28, 2018,
      the Commonwealth filed a Response to the post-sentence motion.

         On October 1, 2018, Appellant filed a Motion to Vacate Order
      for Sex Offender Assessment. On December 12, 2018, the Motion
      was denied as moot as Appellant had been determined to not be
      a sexually violent predator (SVP). On December 19, 2018, the
      [c]ourt denied the post-sentence motion and granted the Petition
      to Supplement Post-Sentence Motion.

         On January 14, 2019, Appellant filed a Notice of Appeal and a
      1925(b) Statement of Matters Complained of on Appeal was filed
      on February 6, 2019.

Trial Court Opinion, 9/5/19, at 1-3 (footnotes omitted).

      On appeal, Appellant presents five issues for review:

      A. Did the Commonwealth present insufficient evidence to sustain
      Appellant’s conviction for Indecent Assault as (1) the testimony
      was so contradictory on the essential issues that the jury’s
      findings were based on mere conjecture and speculation, and (2)
      the verdict was entirely inconsistent with Appellant’s acquittal on
      the other offenses?

      B. Does SORNA’s fifteen-year registration requirement constitute
      an illegal sentence as the registration/notification provisions
      equate to punishment and effectively extend Appellant’s
      maximum sentence without a jury’s finding of his future
      dangerousness beyond a reasonable doubt?

      C. Does SORNA’s fifteen-year registration requirement constitute
      an illegal sentence as it violates federal and state constitutional
      prohibitions against cruel and unusual punishment?

      D. Does SORNA violate due process protections under both the
      Fifth and Fourteenth Amendment to the United States Constitution
      and Article I, Sections 1, 9 and 11 of the Pennsylvania Constitution
      because it is not tailored to the purposes set forth by the General

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J-A09016-20


      Assembly and because it encroaches upon fundamental rights with
      an irrebuttable presumption of recidivism?

      E. Does SORNA registration violate the Separation of Powers
      Doctrine, and is therefore unconstitutional, because it operates as
      criminal punishment, which usurps the exclusive sentencing
      function of the judiciary?

Appellant’s Brief at 10.

      Appellant’s first issue raises two distinct claims.        First, Appellant

purports to challenge the sufficiency of the evidence supporting his indecent

assault (without consent) conviction. Second, Appellant argues that the trial

court erred in not granting his motion for judgment of acquittal because the

jury acquitted him of indecent assault (unconscious victim), aggravated

indecent assault (without consent), and aggravated indecent assault

(unconscious victim), which resulted in an inconsistent verdict. We address

each claim in turn.

      For his challenge to the sufficiency of the evidence for his indecent

assault   conviction,      Appellant   argues   that   the   testimony   of   the

Commonwealth’s witnesses contradicted Victim’s claims that she lacked the

capacity to consent to Appellant’s sexual advances and therefore, Victim’s

testimony was not credible.        This is a challenge to the weight, not the

sufficiency, of the evidence. See Commonwealth v. Melvin, 103 A.3d 1, 43

(Pa. Super. 2014) (“An argument regarding the credibility of a witness’[]

testimony goes to the weight of the evidence, not the sufficiency of the

evidence.”); Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super.


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J-A09016-20


2014) (“variances in testimony go to the credibility of the witnesses and not

the sufficiency of the evidence”) (citations omitted).

      The differences between a challenge to the weight and a challenge to

the sufficiency of the evidence, as our Supreme Court explained in

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000), are as

follows:

         The distinction between these two challenges is critical. A claim
      challenging the sufficiency of the evidence, if granted, would
      preclude retrial under the double jeopardy provisions of the Fifth
      Amendment to the United States Constitution, and Article I,
      Section 10 of the Pennsylvania Constitution, Tibbs v. Florida,
      457 U.S. 31 (1982); Commonwealth v. Vogel, 461 A.2d 604
      (Pa. 1983), whereas a claim challenging the weight of the
      evidence if granted would permit a second trial. Id.

          A claim challenging the sufficiency of the evidence is a question
      of law. Evidence will be deemed sufficient to support the verdict
      when it establishes each material element of the crime charged
      and the commission thereof by the accused, beyond a reasonable
      doubt. Commonwealth v. Karkaria, 625 A.2d 1167 (Pa. 1993).
      Where the evidence offered to support the verdict is in
      contradiction to the physical facts, in contravention to human
      experience and the laws of nature, then the evidence is insufficient
      as a matter of law. Commonwealth v. Santana, 333 A.2d 876
      (Pa. 1975). When reviewing a sufficiency claim the court is
      required to view the evidence in the light most favorable to the
      verdict winner giving the prosecution the benefit of all reasonable
      inferences to be drawn from the evidence. Commonwealth v.
      Chambers, 599 A.2d 630 (Pa. 1991).

         A motion for new trial on the grounds that the verdict is
      contrary to the weight of the evidence, concedes that there is
      sufficient evidence to sustain the verdict. Commonwealth v.
      Whiteman, 485 A.2d 459 (Pa. Super. 1984). Thus, the trial court
      is under no obligation to view the evidence in the light most
      favorable to the verdict winner. Tibbs, 457 U.S. at 38 n.11.




                                      -5-
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Widmer, 744 A.2d at 751-52 (citations modified).       “A true weight of the

evidence challenge concedes that sufficient evidence exists to sustain the

verdict but questions which evidence is to be believed.” Commonwealth v.

Lewis, 911 A.2d 558, 566 (Pa. Super. 2006) (quoting Commonwealth v.

Hunzer, 868 A.2d 498, 507 (Pa. Super. 2005)).

      Our Supreme Court has held that an “appellant’s challenge to the

sufficiency of the evidence must fail[,]” where an appellant phrases an issue

as a challenge to the sufficiency of the evidence, but the argument that

appellant provides goes to the weight of the evidence. Commonwealth v.

Small, 741 A.2d 666, 672 (Pa. 1999); see also Commonwealth v. Gibbs,

981 A.2d 274, 281-82 (Pa. Super. 2009) (finding that a sufficiency claim

raising weight of the evidence arguments would be dismissed). Therefore,

Appellant is not entitled to relief on his challenge to the sufficiency of the

evidence of his convictions.

      Moreover, an appellant must preserve a challenge to the weight of the

evidence before the trial court either at sentencing or in a post-sentence

motion. Pa.R.Crim.P. 607(A); Commonwealth v. Thompson, 93 A.3d 478,

490 (Pa. Super. 2014). Here, Appellant challenged the weight of the evidence

in his written post-sentence motion. See [Appellant]’s Post-Sentence Motion,

8/17/18, ¶ 7. Because Appellant raised a weight of the evidence claim in his

post-sentence motion and Pa.R.A.P. 1925(b) statement, and the trial court

addressed the claim in its Pa.R.A.P. 1925(a) opinion, we will address


                                    -6-
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Appellant’s arguments relating to the weight of the evidence.                See

[Appellant]’s Post-Sentence Motion, 8/17/18, ¶ 7; Pa.R.A.P. 1925(b)

Statement, 2/6/19, ¶ 3; Trial Court Opinion, 9/5/19, at 9-10.

     Our standard of review for a weight of the evidence claim is as follows:

         A motion for a new trial based on a claim that the verdict is
     against the weight of the evidence is addressed to the discretion
     of the trial court. Commonwealth v. Widmer, [] 744 A.2d 745,
     751-52 ([Pa.] 2000); [Commonwealth v. Brown, 648 A.2d
     1177, 1189 (Pa. 1994)]. A new trial should not be granted
     because of a mere conflict in the testimony or because the judge
     on the same facts would have arrived at a different conclusion.
     Widmer, 744 A.2d at 752. Rather, “the role of the trial judge is
     to determine that ‘notwithstanding all the facts, certain facts are
     so clearly of greater weight that to ignore them or to give them
     equal weight with all the facts is to deny justice.’” [Id.] (citation
     omitted). It has often been stated that “a new trial should be
     awarded when the jury’s verdict is so contrary to the evidence as
     to shock one’s sense of justice and the award of a new trial is
     imperative so that right may be given another opportunity to
     prevail.” Brown, 648 A.2d at 1189.

       An appellate court’s standard of review when presented with a
     weight of the evidence claim is distinct from the standard of review
     applied by the trial court:

               Appellate review of a weight claim is a review of
           the exercise of discretion, not of the underlying
           question of whether the verdict is against the weight
           of the evidence. Brown, 648 A.2d at 1189. Because
           the trial judge has had the opportunity to hear and
           see the evidence presented, an appellate court will
           give the gravest consideration to the findings and
           reasons advanced by the trial judge when reviewing a
           trial court’s determination that the verdict is against
           the weight of the evidence. Commonwealth v.
           Farquharson, 354 A.2d 545 (Pa. 1976). One of the
           least assailable reasons for granting or denying a new
           trial is the lower court’s conviction that the verdict was
           or was not against the weight of the evidence and that
           a new trial should be granted in the interest of justice.

                                     -7-
J-A09016-20



      Widmer, 744 A.2d at 753 (emphasis added).

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013).

      Section 3126 (a)(1) of the Pennsylvania Crimes Code defines indecent

assault (without consent) as follows:

      (a) Offense defined.--A person is guilty of indecent assault if
      the person has indecent contact with the complainant, causes the
      complainant to have indecent contact with the person or
      intentionally causes the complainant to come into contact with
      seminal fluid, urine or feces for the purpose of arousing sexual
      desire in the person or the complainant and:

         (1) the person does so without the complainant’s consent[.]

18 Pa.C.S.A. § 3126(a)(1).

      Appellant does not dispute that he engaged in both oral and sexual

intercourse with Victim. See N.T., 12/21/17, at 282-85; see also Appellant’s

Brief at 33. Instead, Appellant asserts that Victim’s claim that she did not or

could not consent to the sexual contact lacked credibility.       The trial court

rejected Appellant’s weight claim, explaining that the jury determined that

Victim’s testimony was credible and that it is not the court’s role to disturb the

jury’s credibility determinations. Trial Court Opinion, 9/5/19, at 10. Further,

the trial court stated that based on the court’s own review of the evidence,

the verdict “does not shock one’s sense of justice.” Id.

      As this Court has repeatedly explained, “the determination of the

credibility of a witness is within the exclusive province of the jury.”

Commonwealth v. Izurieta, 171 A.3d 803, 809 (Pa. Super. 2017).                 As


                                      -8-
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Appellant raises no other arguments relating to his challenge to the weight of

the evidence, we conclude that the trial court did not abuse its discretion in

denying Appellant’s weight claim.

         With regard to his claim that he was entitled to judgment of acquittal,

Appellant argues that the jury convicted him of indecent assault (without

consent), but acquitted him on the charges of indecent assault (unconscious

victim), aggravated indecent assault (without consent), and aggravated

indecent assault (unconscious victim), which resulted in an inconsistent

verdict. Appellant maintains that based on his acquittals, the Commonwealth

never established that he lacked consent to engage in sexual contact with

Victim and his conviction of indecent assault (without consent) has no logical

basis.

         We recognize:

         “[I]nconsistent verdicts, while often perplexing, are not
         considered mistakes and do not constitute a basis for reversal.”
         Commonwealth v. Petteway, 847 A.2d 713, 718 (Pa. Super.
         2004) (citations omitted). Rather, “[t]he rationale for allowing
         inconsistent verdicts is that it is the jury’s sole prerogative to
         decide on which counts to convict in order to provide a defendant
         with sufficient punishment.” Commonwealth. v. Miller, 657
         A.2d 946, 948 (Pa. Super. 1995) (citations omitted). “When an
         acquittal on one count in an indictment is inconsistent with a
         conviction on a second count, the court looks upon the acquittal
         as no more than the jury’s assumption of a power which they had
         no right to exercise, but to which they were disposed through
         lenity. Thus, this Court will not disturb guilty verdicts on the basis
         of apparent inconsistencies as long as there is sufficient evidence
         to support the verdict.” Petteway, supra.




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Commonwealth v. Frisbie, 889 A.2d 1271, 1273 (Pa. Super. 2005)

(citations modified); see also Commonwealth v. Miller, 35 A.3d 1206,

1208, 1213 (Pa. 2012) (“inconsistent verdicts . . . are allowed to stand so long

as the evidence is sufficient to support the conviction”; “an acquittal cannot

be interpreted as a specific finding in relation to some of the evidence, and

that even where two verdicts are logically inconsistent, such inconsistency

alone cannot be grounds for a new trial or for reversal”; “the ‘special weight’

afforded the fact of an acquittal plays no role in the analysis of inconsistent

verdicts, because, by definition, one of the verdicts will always be an

acquittal”).

      There is no dispute that Appellant engaged in sexual contact with Victim.

See N.T., 12/21/17, at 282-85; see also Appellant’s Brief at 33. The only

additional evidence Section 3126(a)(1) requires for conviction is evidence that

Appellant did so without Victim’s consent. See 18 Pa.C.S.A. § 3126(a)(1).

Victim testified that Appellant engaged in sexual contact with her without her

consent.       See N.T., 12/20/17, at 70-71.    Because there was sufficient

evidence to sustain his indecent assault (without consent) conviction,

Appellant’s inconsistent verdict argument does not merit relief. See Miller,

35 A.3d at 1208, 1213.

      The remainder of Appellant’s issues raise various constitutional

challenges to the most recent version of Pennsylvania’s Sexual Offender

Registration and Notification Act (SORNA).         “Because [these] issue[s]


                                     - 10 -
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present[] a question of law, our standard of review is de novo and our scope

of review is plenary.” Commonwealth v. Horning, 193 A.3d 411, 414 (Pa.

Super. 2018).

      In his second issue, Appellant argues that his 15-year sex offender

registration requirement is an illegal sentence because it constitutes criminal

punishment and consequently, it extends his sentence beyond the lawful

maximum sentence for indecent assault (without consent). This claim does

not warrant relief.

      “The Pennsylvania General Assembly passed [Pennsylvania's Sexual

Offender Registration and Notification Act (SORNA)] as Act 111 of 2011,

signed December 20, 2011. In so doing, it provided for the expiration of prior

registration requirements, commonly referred to as Megan’s Law, 42 Pa.C.S.A

§§ 9791–9799.9, as of December 20, 2012, and for the effectiveness of

SORNA on the same date.” In re J.B., 107 A.3d 1, 3 (Pa. 2014). On July 19,

2017, the Pennsylvania Supreme Court issued its Opinion Announcing the

Judgment of the Court in Commonwealth v. Muniz, 164 A.3d 1189 (Pa.

2017), which found SORNA to be punitive in nature and held that retroactive

application of the registration and reporting requirements of SORNA to

criminal defendants violated the ex post facto clauses of the United States and

Pennsylvania Constitutions.    Id. at 1223; see also Commonwealth v.

Wood, 208 A.3d 131, 138 (Pa. Super. 2019) (en banc) (“[A]pplication of

SORNA to sexual offenders for offenses committed before its effective date


                                    - 11 -
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violates the ex post facto clauses of the United States and Pennsylvania

Constitution.”).

      Following Muniz, the General Assembly passed legislation that

attempted to cure the constitutional defects of SORNA.       Regarding this

legislation, we have explained:

         In response to our Supreme Court’s decision in Muniz . . . ,
      the Pennsylvania General Assembly passed Acts 10 and 29 of
      2018 [(SORNA II)]. The express purpose of these legislative
      enactments was, inter alia, to “[p]rotect the safety and general
      welfare of the people of this Commonwealth by providing for
      registration, community notification and access to information
      regarding sexually violent predators and offenders who are about
      to be released from custody and will live in or near their
      neighborhood[,]” and to cure SORNA’s constitutional defects by
      “address[ing] [Muniz].” See 42 Pa.C.S.A. § 9799.51(b)(1),(4).

         Specifically, our General Assembly modified Subchapter H’s
      registration requirements for those offenders convicted of
      committing offenses that occurred on or after SORNA’s effective
      date of December 20, 2012. The General Assembly also added
      Subchapter I to Title 42, Part VII, Chapter 97. Subchapter I sets
      forth the registration requirements that apply to all offenders
      convicted of committing offenses on or after Megan’s Law I’s
      effective date (April 22, 1996), but prior to SORNA’s effective
      date.

Commonwealth v. Bricker, 198 A.3d 371, 375-76 (Pa. Super. 2018).

      In this case, the offense date for the actions underlying Appellant’s

indecent assault (without consent) conviction was September 5, 2016. Thus,

the trial court appropriately ordered Appellant to register as a Tier I sex

offender for 15 years under Subchapter H of SORNA II. See 42 Pa.C.S.A. §§

9799.14(b)(6), 9799.15(a)(1).




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      Appellant’s indecent assault (without consent) conviction was a second-

degree misdemeanor for which the maximum sentence is two years. See 18

Pa.C.S.A. § 1104(2).     As this Court has recently explained, and Appellant

concedes, “a sentencing requirement for a defendant to register as a sexual

offender for a period of time exceeding the lawful statutory maximum for his

offense is not illegal.” Commonwealth v. Martin, 205 A.3d 1247, 1250 (Pa.

Super. 2019); Bricker, 198 A.3d at 376-77; see also Appellant’s Brief at 55.

The only difference between Martin and Bricker and the instant matter is

that the appellants in Martin and Bricker were convicted of felonies, as

opposed to a misdemeanor. As the analysis of those cases is dispositive here,

we quote it in detail:

         With regard to Appellant’s assertion that Muniz held SORNA’s
      registration requirements constituted punishment, and, therefore,
      Subsection H cannot be imposed upon him as [it] exceeds the
      lawful statutory maximum for his offense which is seven (7) years,
      we observe that this Court recently held that SORNA’s registration
      requirements are not governed by the statutory maximum
      sentences set forth in Chapter 11 of the Crimes Code. See
      Commonwealth v. Strafford, 194 A.3d 168, 172-73 (Pa. Super.
      2018). Observing this issue appeared to be one of first impression
      post-Muniz, we reasoned as follows:

            Appellant correctly observes that the Muniz Court found
         that the registration requirement mandated by SORNA is
         punitive. See Muniz, supra at 1218[.] We, thus, begin
         our analysis of Appellant’s challenge with a review of various
         statutes and legal principles relating to punishments.

            Our Supreme Court has explained the well-settled
         principle that the General Assembly “has the exclusive
         power to pronounce which acts are crimes, to define crimes,
         and to fix the punishment for all crimes. The legislature also
         has the sole power to classify crimes[.]” Commonwealth

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J-A09016-20


       v. Eisenberg, 98 A.3d 1268, 1283 ([Pa.] 2014) (citation
       and quotation omitted).

          Our General Assembly has authorized courts to impose
       specific punishments when fashioning a sentence, and
       specified maximum terms and amounts of those
       punishments. These categories of punishment include (1)
       partial or total confinement, (2) probation, (3) state or
       county intermediate punishment, (4) a determination of
       guilt without further penalty, and (5) a fine. 42 Pa.C.S.A. §
       9721.

          With respect to the punishment of incarceration, 18
       Pa.C.S.A.    § 1103 governs the maximum authorized
       sentence of imprisonment for felony convictions. By a
       separate statute, these maximum allowable terms also
       apply to probationary sentences, a different category of
       punishment authorized by the General Assembly. In 42
       Pa.C.S.A. § 9754(a), the legislature directed that “[i]n
       imposing an order of probation the court shall specify at the
       time of sentencing the length of any term during which the
       defendant is to be supervised, which term may not exceed
       the maximum term for which the defendant could be
       confined, and the authority that shall conduct the
       supervision.” Id. (emphasis added). Thus, the legislature
       explicitly connected the authorized punishments of
       incarceration and probation by statute.

           However, most sentencing alternatives are not tied to the
       maximum authorized term of incarceration. For example,
       the legislature has authorized courts to include in sentences
       the requirement that a defendant pay a fine or restitution.
       These categories of punishment are not limited by the
       maximum period of incarceration; rather, the legislature set
       different maximum authorized amounts of punishment a
       court may impose as part of its sentence. See, e.g., 18
       Pa.C.S.A. § 1101 (defining maximum fines); 18 Pa.C.S.A. §
       1106 (providing statutory scheme for restitution for injuries
       to person or property).

          In SORNA the legislature authorized courts to include
       periods of registration as part of a sentence. Similar to the
       treatment of the payment of fines or restitution, the
       legislature did not tie the period of registration to the length

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         of incarceration. See 42 Pa.C.S.A. § 9799.14 (“Sexual
         offenses and tier system”); 42 Pa.C.S.A. § 9799.15 (“Period
         of registration”). SORNA’s registration provisions are not
         constrained by Section 1103. Rather, SORNA’s registration
         requirements are an authorized punitive measure separate
         and apart from Appellant’s term of incarceration. The
         legislature did not limit the authority of a court to impose
         registration requirements only within the maximum
         allowable term of incarceration; in fact, the legislature
         mandated the opposite and required courts to impose
         registration requirements in excess of the maximum
         allowable term of incarceration.

Martin, 205 A.3d at 1251-52 (Pa. Super. 2019) (quoting Bricker, 198 A.3d

at 376-77).

      It is well-settled that “[t]his Court is bound by existing precedent under

the doctrine of stare decisis and continues to follow controlling precedent as

long as the decision has not been overturned by our Supreme Court.”

Commonwealth v. Reed, 107 A.3d 137, 143 (Pa. Super. 2014). Based on

our decisions in Martin and Bricker, we conclude that Appellant’s fifteen-year

registration requirement under SORNA II does not constitute an illegal

sentence. Accordingly, Appellant’s second issue fails.

      In his third issue, Appellant argues that SORNA II’s 15-year registration

requirement is unconstitutional because it violates federal and state

constitutional protections against cruel and unusual punishment. As Appellant

readily concedes, this Court has rejected this claim and it does not entitle him

to relief. Appellant’s Brief at 64. In Commonwealth v. Prieto, 206 A.3d

529 (Pa. Super. 2019), this Court explicitly concluded that SORNA II’s 15-year

registration requirement for Tier I sex offenders “constitutes neither an illegal

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sentence nor cruel and unusual punishment.”        Id. at 536.      Accordingly,

Appellant’s third issue fails.

      In his fourth issue, Appellant argues that SORNA II violates his federal

and state due process rights because it creates an irrebuttable presumption

relating to sex offenders’ high risk of recidivism and impinges upon offenders’

right to reputation. This claim lacks merit.

      First, with respect to Appellant’s claim that SORNA violates his due

process rights under the Fifth and Fourteenth Amendments, we note that

Appellant has, in fact, been able to challenge SORNA II’s registration

requirement in the trial court and before this Court. Second, Appellant cites

to our Supreme Court’s decision in J.B., supra, in support of his claim that

SORNA II’s 15-year registration requirement deprived him of due process by

applying an irrebuttable presumption concerning his likelihood of recidivism,

and impinges on his right to reputation. See id. at 2, 19-20 (holding that

SORNA’s lifetime registration requirement “violates juvenile offenders’ due

process rights through the use of an irrebuttable presumption[,]” where the

presumption is not universally true and a reasonable alternative means exists

for determining which juvenile offenders are likely to reoffend).

      In Commonwealth v. Haines, 222 A.3d 756 (Pa. Super. 2019), we

expanded the J.B. holding to apply to criminal defendants who committed

their crimes as juveniles, but were convicted as adults. We explained:

         In [J.B.], our Supreme Court addressed the issue of whether
      the imposition of lifetime registration requirements pursuant to

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      SORNA on juvenile offenders adjudicated delinquent of certain
      crimes constituted a violation of juvenile offenders’ due process
      rights through the use of an irrebuttable presumption – the risk of
      reoffending. Id. at 14. We recognize that J.B. was decided before
      Muniz, which clearly holds that application of SORNA to sex
      offenders who committed their crimes prior to SORNA’s enactment
      constitutes an ex post facto violation. Muniz, 164 A.3d at 1223.
      The issue we now consider is whether J.B. applies to criminal
      defendants who committed their crimes as juveniles, but were
      convicted as adults. We hold that it does.

         In J.B., the Supreme Court examined SORNA as applied to
      seven juveniles adjudicated delinquent for sexual offenses. Id. at
      2-3. The consolidated cases arose from a determination by York
      County Court of Common Pleas Judge John C. Ulher that the
      SORNA registration requirements, as applied to juveniles, were
      unconstitutional. Id. at 10. In agreeing with the trial court’s
      decision, our Supreme Court also reviewed and credited scientific
      research that concluded that, unlike adult sexual offenders,
      juveniles exhibit lower levels of recidivism, a fundamental
      underpinning to the registration requirements of SORNA.

Id. at 757-58.

      Appellant fails to acknowledge that the Supreme Court’s holding in J.B.

and this Court’s holding in Haines were limited to juvenile offenders subject

to lifetime registration. See id. Moreover, we are unable to find any cases

extending these holdings to adult offenders under either SORNA or SORNA II

or to offenders who were not subject to lifetime registration. Therefore, we

find Appellant’s reliance on J.B. unavailing and his fourth issue does not entitle

him to relief.

      In his final issue, Appellant argues “that the sanctions of SORNA [II],

and the classification imposed by         [the] statute, without regard for

individualized   sentencing,    amount     to   constitutionally   impermissible


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impingement of the legislature on the sentencing functions and power of the

judiciary.” Appellant’s Brief at 77. Thus, Appellant contends that “this is an

unconstitutional exercise of legislative power, invading and interfering with

the independence of the judiciary in fulfilling its statutorily and constitutionally

mandated duties.” Id.

      Appellant’s   separation    of   powers    argument     lacks   merit.     In

Commonwealth v. Strafford, 194 A.3d 168 (Pa. Super. 2018), we observed

the general principle that the General Assembly “has the exclusive power to

pronounce which acts are crimes, to define crimes, and to fix punishment for

all crimes.” Id. at 172. We further explained:

      SORNA’s registration requirements are an authorized punitive
      measure separate and apart from [a defendant]’s term of
      incarceration. The legislature did not limit the authority of a court
      to impose registration requirements only within the maximum
      allowable term of incarceration; in fact, the legislature mandated
      the opposite and required courts to impose registration
      requirements in excess of the maximum allowable term of
      incarceration.

Id. at 173.

      In Commonwealth v. Rhoads, 836 A.2d 159 (Pa. Super. 2003), this

Court held that Megan’s Law II did not usurp the Supreme Court’s authority

under Article V of the Pennsylvania Constitution to prescribe general rules

governing the practice, procedure, and conduct of the courts, because

Megan’s Law II was “substantive law and it does not set forth rules governing

court practice or procedure.” Id. at 163. Although Rhoads addressed the

constitutionality of an earlier sex offender registration statute, Appellant fails

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to explain how the rationale of Rhoads is not likewise applicable to SORNA.

Appellant does not establish that SORNA exceeds the legislature’s exclusive

authority “to fix the punishment for all crimes,” Strafford, 194 A.3d at 172,

or that SORNA “deputize[s] judicial employees to perform duties more

properly reserved to another of the co-equal branches of government.” See

Commonwealth v. Mockaitis, 834 A.2d 488, 500 (Pa. 2003). Accordingly,

because we find no merit to this constitutional challenge, Appellant’s final

issue does not merit relief.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/2020




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