J-S39004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                     Appellee             :
                                          :
                v.                        :
                                          :
 KENNETH A. LEWIS                         :
                                          :
                     Appellant            :       No. 1976 EDA 2017

                 Appeal from the PCRA Order May 30, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0002049-2011,
                          CP-51-CR-0005295-2011


BEFORE:    GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.

MEMORANDUM BY GANTMAN, P.J.E.:                   FILED OCTOBER 23, 2019

      Appellant, Kenneth A. Lewis, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which denied his first petition

brought pursuant to the Post-Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A.

§§ 9541-9546.        We affirm in part, vacate in part, and remand with

instructions.

      The relevant facts and procedural history of this case are as follows. In

November 2010, Appellant harassed victim, J.R., with numerous threatening

phone calls and text messages. On December 17, 2010, Appellant physically

assaulted and raped another victim, A.S.        The resulting charges were

consolidated for trial. On March 14, 2013, a jury convicted Appellant of rape,

involuntary deviate sexual intercourse, sexual assault, indecent assault,

unlawful restraint, possessing an instrument of crime, intimidation of a
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* Former Justice specially assigned to the Superior Court.
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witness, aggravated assault, stalking, terroristic threats, and harassment. On

August 9, 2013, the court sentenced Appellant to an aggregate term of 55 to

110 years’ imprisonment. The court also required Appellant to register for life

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

Act (“SORNA”), and designated Appellant as a sexually violent predator

(“SVP”). This Court affirmed the judgment of sentence on February 3, 2015;

our Supreme Court denied a petition for allowance of appeal on July 23, 2015.

See Commonwealth v. Lewis, 120 A.3d 366 (Pa.Super. 2015) (unpublished

memorandum), appeal denied, 632 Pa. 680, 118 A.3d 1108 (2015).

      On February 2, 2016, Appellant timely filed a pro se PCRA petition at

both docket numbers. The PCRA court appointed counsel on May 16, 2016.

Counsel filed a petition to withdraw and a no-merit letter pursuant to

Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc), on

January 31, 2017. That same day, the PCRA court issued notice of its intent

to dismiss pursuant to Pa.R.Crim.P. 907.        Appellant filed three pro se

responses to the Rule 907 notice, on February 15, 2017, March 2, 2017, and

May 4, 2017. On May 30, 2017, the PCRA court denied relief and granted

counsel’s petition to withdraw.

      Appellant timely filed a pro se notice of appeal on June 8, 2017. On

November 8, 2017, the PCRA court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b);


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Appellant complied pro se on December 1, 2017.1

       Appellant raises the following issues for our review:

          IS [APPELLANT] ENTITLED TO A NEW TRIAL ON CASES CP-
          -51-CR-0005295-2011    AND    CP-51-CR-0002049-2011
          WHERE [APPELLANT] WAS NOT PRESENT NOR HAD AGREED
          OR HAD KNOWLEDGE OF PLEADING GUILTY ON 3-5-2013
          FOR CASE CP-51-CR-0005295-2011 NEVER GIVEN
          COUNSEL…PERMISSION TO NEGOTIATE A GUILTY PLEA—
          ONLY TO WITHDRAW THE GUILTY PLEA ON 3-6-2013[,]
          NONE OF THIS WITH THE KNOWLEDGE OR AGREEMENT OF
          [APPELLANT?] THIS IN FACT WAS A TACTIC TO DISMISS A
          QUALIFIED JURY THAT HAD BEEN QUALIFIED ALREADY IN
          ORDER TO START ANEW WITH A NEW VOIR DIRE AND
          PICKING NEW JURY.

          IS [APPELLANT] ENTITLED TO A NEW TRIAL WHERE
          INADMISSIBLE EVIDENCE WAS ADMITTED, THUS THE
          JURIST ABUSING HIS DICRETION TO WHERE THE [COURT]
          MERGED TWO SEPARATE CASES, THAT OCCURRED ON TWO
          SEPARATE DATES, WHICH DID NOT HOLD TAINT TOWARDS
          SUBJECT MATTER[?] [APPELLANT] WAS SUBJECT TO A
          DOUBLE JEOPARDY STANDARD IN VIOLATION OF THE
          UNITED STATES CONSTITUTION. A PRIOR OR PREVIOUS
          DOMESTIC CASE BETWEEN [APPELLANT] AND HIS
          COMPANION CP-51-CR-0005295-2011, SHOULD NOT HAVE
          BEEN PRESENTED BEFORE THE JURY IT’S A MISDEMEANOR.
          THIS MISHAP PREJUDICES [APPELLANT] AND ABRIDGED
          HIS CONSTITUTIONAL RIGHTS TO A FAIR TRIAL.

(Appellant’s Brief at 3).

       Initially, to be eligible for relief under the PCRA, the petitioner must

plead and prove his conviction resulted from one or more of the grounds set

forth in 42 Pa.C.S.A. § 9543(a)(2)(i-viii). Commonwealth v. Zook, 585 Pa.


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1Appellant filed his single notice of appeal prior to June 1, 2018. Thus, this
case does not present a jurisdictional issue under Commonwealth v.
Walker, ___ Pa. ___, 185 A.3d 969 (2018).

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11, 887 A.2d 1218 (2005). “Generally, an appellant may not raise allegations

of error in an appeal from the denial of PCRA relief as if he were presenting

the claims on direct appeal.” Commonwealth v. Price, 876 A.2d 988, 995

(Pa.Super. 2005), appeal denied, 587 Pa. 706, 897 A.2d 1184 (2006), cert.

denied, 549 U.S. 902, 127 S.Ct. 224, 166 L.Ed.2d 179 (2006). Further, a

petitioner must plead and prove his allegation of error has not been previously

litigated or waived. Commonwealth v. Bridges, 584 Pa. 589, 594, 886 A.2d

1127, 1130 (2005) (citing 42 Pa.C.S.A. § 9543(a)(3)). “A claim previously

litigated   in   a   direct   appeal   is    not   cognizable    under   the   PCRA.”

Commonwealth v. Hutchins, 760 A.2d 50, 55 (Pa.Super. 2000).

      Instantly, Appellant argues that he is entitled to a new trial because the

evidence was insufficient to sustain the verdict or in the alternative, that the

verdict was against the weight of the evidence. Appellant also challenges the

discretionary aspects of his sentence. All three of these arguments are raised

in terms of trial court error, which is impermissible in the PCRA context. See

42 Pa.C.S.A. § 9543(a)(2); Zook, supra; Price, supra. Further, on direct

appeal, Appellant litigated both the sufficiency and weight issues, which he

now raises in this appeal.       See Hutchins, supra.           Therefore, Appellant’s

issues are not cognizable under the PCRA; and the PCRA court properly denied

relief on these grounds.

      Nevertheless, we are mindful of recent case law calling into question the

retroactive application of sex offender registration under SORNA to offenses


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committed before the effective date of SORNA.            Given the timeliness of

Appellant’s PCRA petition, we elect to review the legality of Appellant’s

sentence on this basis sua sponte. See Commonwealth v. DiMatteo, 644

Pa. 463, 177 A.3d 182 (2018) (reiterating general rule that legality of

sentence    can   be   reviewed   in   context   of     timely   PCRA     petition);

Commonwealth v. Randal, 837 A.2d 1211 (Pa.Super. 2003) (en banc)

(explaining challenges to illegal sentence cannot be waived and may be raised

by this Court sua sponte, assuming jurisdiction is proper; illegal sentence must

be vacated).

      The   Pennsylvania    Supreme     Court    held    that    the    registration

requirements      under     SORNA       constitute       criminal      punishment.

Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017), cert. denied,

___ U.S. ___, 138 S.Ct. 925, 200 L.Ed.2d 213 (2018).             The Muniz Court

declared SORNA’s purpose was punitive in effect, notwithstanding the General

Assembly’s intended purpose for the law as a civil remedy. Id. at 748-49,

164 A.3d at 1218. We have since held Muniz created a substantive rule that

retroactively applies in the collateral context. Commonwealth v. Rivera-

Figueroa, 174 A.3d 674, 678 (Pa.Super. 2017).

      Instantly, Appellant committed his registerable offenses on December

17, 2010, before the effective date of SORNA on December 20, 2012. See 42

Pa.C.S.A. §§ 9799.10, 9799.41. Under SORNA, Appellant’s sex offenses carry

a lifetime registration requirement but with an increase in reporting


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requirements as compared to Megan’s Law III.            See 42 Pa.C.S.A. §§

9799.14(d)(2), (4), (5); 9799.15(a)(3), (6).        See also 42 Pa.C.S.A. §

9795.1(b)(2) (effective December 8, 2008 to December 19, 2011). Because

Appellant committed his offenses before the effective date of SORNA, the

increased reporting requirements of SORNA constitute greater punishment for

Appellant. See Muniz, supra. Thus, the imposition of SORNA registration

requirements on Appellant violates the ex post facto clauses of both the United

States and Pennsylvania Constitutions.2 See id.; Rivera-Figueroa, supra.

       Further, this Court held the process and imposition of SVP status is also

unconstitutional, “because it increases the penalty to which a defendant is

exposed without the chosen fact-finder making the necessary factual findings

beyond a reasonable doubt.” Commonwealth v. Butler, 173 A.3d 1212,

1218 (Pa.Super. 2017), appeal granted, ___ Pa. ___, 190 A.3d 581 (2018).

“[A] PCRA petitioner can obtain relief from an illegal sentence under Butler,

if the petition is timely filed, as long as the relevant judgment of sentence

became final after June 17, 2013, the date [Alleyne v. United States, 570



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2The General Assembly created Subchapter I through Act 10 and amended in
Act 29, in response to Muniz and its progeny. See H.B. 1952, 202 Gen.
Assem., Reg. Sess. (Pa. 2018), Act 29 of 2018; H.B. 631, 202 Gen. Assem.,
Reg. Sess. (Pa. 2018), Act 10 of 2018. Subchapter I addresses sex offenders
who committed offenses before December 20, 2012. See 42 Pa.C.S.A. §§
9799.51-9799.75. Additionally, this Court recently held the effective date of
SORNA controls for purposes of this ex post facto analysis.              See
Commonwealth v. Lippincott, 208 A.3d 143 (Pa.Super. 2019) (en banc);
Commonwealth v. Wood, 208 A.3d 131 (Pa.Super. 2019) (en banc).

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U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013)] was decided.”

Commonwealth v. Adams-Smith, 209 A.3d 1011, 1024 (Pa.Super. 2019).

      Here, Appellant’s judgment of sentence became final on October 21,

2015, after the United States Supreme Court had decided Alleyne on June

17, 2013. See U.S.Sup.Ct.R. 13; Alleyne, supra. Both Muniz and Butler

were decided during the pendency of Appellant’s timely PCRA petition. Under

these new cases, Appellant’s SVP status constitutes an illegal sentence subject

to correction.   See 42 Pa.C.S.A. § 9542 (stating persons serving illegal

sentence may obtain collateral relief); Adams-Smith, supra. Therefore, we

must vacate Appellant’s SVP status. See Randal, supra. Accordingly, we

affirm the order denying PCRA relief, but we vacate that portion of the

judgment of sentence which required Appellant to register for life under

SORNA and designated Appellant as an SVP; we remand the case to the trial

court to instruct Appellant on his proper registration and reporting

requirements.

      Order affirmed; judgment of sentence vacated in part solely as to SVP

status and SORNA reporting requirements; case remanded with instructions.

Jurisdiction is relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/23/19




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