J-S35008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BRIAN HAGERTY                              :
                                               :
                       Appellant               :   No. 3023 EDA 2017

             Appeal from the Judgment of Sentence March 21, 2014
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0004879-2010


BEFORE:      OLSON, J., STABILE, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                            FILED NOVEMBER 13, 2019

       Appellant, Brian Hagerty, appeals from the judgment of sentence

entered on March 21, 2014 in the Criminal Division of the Court of Common

Pleas of Philadelphia County, following reinstatement of his direct appeal

rights pursuant to the Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.

We affirm in part and vacate in part.1


____________________________________________


1 On November 30, 2017, this Court entered a show cause order, noting that
the notice of appeal filed on September 14, 2017 did not indicate the date of
the order from which the appeal had been taken. See Show Cause Order,
11/30/17, citing Pa.R.A.P. 904 (Content of Notice of Appeal). Subsequently,
on December 1, 2017, the Philadelphia County clerk of courts provided this
Court with a copy of a notice of appeal which included the date of the order
which is the subject of this appeal. It further appeared, upon review of the
trial court docket, that an incomplete notice of appeal was inadvertently
forwarded to this Court for filing on September 21, 2017. Accordingly, on
December 4, 2017, we issued an order that discharged our November 30,
2017 order to show cause. Because a complete notice of appeal has now been
docketed in this case, we need not examine this issue further.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      Between 2001 and 2010, Appellant, on numerous occasions, engaged

in inappropriate sexual contact with K.H., the daughter of his paramour. See

Trial Court Opinion, 8/13/18, at 2-4 (summarizing instances of sexual abuse).

After the Department of Human Services received reports regarding the

abuse, police authorities arrested Appellant on March 11, 2010. Appellant

then proceeded to a bench trial that began on June 14, 2013 and concluded

on June 19, 2013. At the conclusion of trial, the court found Appellant guilty

of aggravated indecent assault of a child (18 Pa.C.S.A. § 3125(b)), unlawful

contact with a minor – sexual offenses (18 Pa.C.S.A. § 6318(a)), unlawful

restraint/serious bodily injury (18 Pa.C.S.A. § 2902(b)), false imprisonment

(18     Pa.C.S.A.     § 2903(b)),      endangering      the     welfare      of

children – parent/guardian/other commits offense (18 Pa.C.S.A. § 4304(a)),

indecent assault of a person less than 13 years of age (18 Pa.C.S.A.

§ 3126(a)(7)), corruption of minors (18 Pa.C.S.A. § 6301(a)(ii)), and simple

assault (18 Pa.C.S.A. § 2701(a)).

      On March 21, 2014, the trial court sentenced Appellant to serve six and

one-half to 13 years’ incarceration, followed by seven years’ probation, for

aggravated indecent assault of a child. The court also ordered Appellant to

serve two to four years in prison, followed by three years’ probation, for

indecent assault of a person less than 13 years of age. These sentences were

imposed consecutively; hence, Appellant received an aggregate sentence of

eight and one-half to 17 years’ incarceration, followed by 10 years’ probation.

In a document prepared and signed by Appellant on March 21, 2014, Appellant

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received notice that he had been classified as a sexually violent predator (SVP)

and that he was subject to lifetime registration as a sexual offender. 2 After

successfully pursuing collateral relief, Appellant’s direct appeal rights were

reinstated nunc pro tunc on August 17, 2017.          This timely direct appeal

followed on September 14, 2017.

       In his brief, Appellant raises the following issues for our review:


       I.     Whether the [trial court] erred in granting the
              Commonwealth’s [m]otion [to admit evidence of prior bad
              acts?]

       II.    Whether the [evidence] was insufficient as a matter of
              law[?]

       III.   Whether [Appellant can lawfully be designated as a sexually
              violent predator under the Sexual Offender Registration and
              Notification Act (SORNA)?]

Appellant’s Brief at 8.

       In his first issue, Appellant claims that the trial court erred in granting

a pre-trial motion that allowed the Commonwealth to introduce evidence of

prior bad acts at trial. In developing this claim, Appellant initially points out


____________________________________________


2 There is no transcript of Appellant’s sentencing hearing included in the
certified record. Moreover, it is unclear from the acknowledgement form
executed by Appellant on March 21, 2014 whether his SVP designation,
registration requirements, and lifetime registration status were imposed
pursuant to the Sexual Offender Registration and Notification Act (SORNA),
42 Pa.C.S.A. § 9799.10 et seq. For example, the form does not specify SORNA
as the statutory source for Appellant’s SVP designation or his registration
requirements.    Moreover, there is no effort on the form to designate
Appellant’s convictions according to SORNA’s “tiered” classification scheme.

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that the challenged evidence included “complaints that had previously been

dismissed.” Appellant’s Brief at 16. Appellant then explains that the evidence

could not be used to establish his intent since the Commonwealth made no

showing that he possessed the same mental state when he engaged in both

the dismissed and the charged offenses. In the absence of proof that there

was a “close factual nexus” between the dismissed and the charged offenses,

Appellant claims that it was error for the court to permit the evidence

particularly since the court did not articulate how the probative value of the

evidence exceeded its prejudicial effects. This claim is both undeveloped and

meritless.

       Appellant’s brief does not identify with particularity which prior assaults

were improperly admitted by the trial court. This omission raises significant

obstacles to meaningful review in the context of this appeal.        At trial, the

Commonwealth introduced a significant number of Appellant’s prior bad acts,

including his sexual abuse of his stepdaughters,3 his physical and verbal

threats toward them, and his abuse of animals. Without a detailed challenge

to the trial court’s evidentiary determination, we are unable to assess the

merits of Appellant’s opening abuse of discretion claim. Hence, this issue is

waived. See Pa.R.A.P. 2119; see also Commonwealth v. Freeman, 128


____________________________________________


3  Appellant was originally charged with sexual abuse of both of his
stepdaughters, K.H. and A.H. The trial court, however, acquitted Appellant of
all charges pertaining to A.H. Hence, we have not discussed the charges
involving A.H. in the context of this memorandum.

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A.3d 1231, 1249 (Pa. Super. 2015) (“The failure to develop an adequate

argument in an appellate brief may result in waiver of the claim under

Pa.R.A.P. 2119.”).

      Even if we were to reach the merits of Appellant’s evidentiary challenge,

it is highly improbable that we would conclude that Appellant is entitled to

relief on his objection to unspecified “dismissed complaints.”        We apply a

well-settled standard of review when reviewing evidentiary challenges:

      When ruling on a trial court's decision to grant or deny a motion
      in limine, we apply an evidentiary abuse of discretion standard of
      review. The admission of evidence is committed to the sound
      discretion of the trial court, and a trial court's ruling regarding the
      admission of evidence will not be disturbed on appeal unless that
      ruling reflects manifest unreasonableness, or partiality, prejudice,
      bias, or ill-will, or such lack of support to be clearly erroneous.

Commonwealth v. Ivy, 146 A.3d 241, 250–251 (Pa. Super. 2016) (citation

omitted).

      Rule 404 of the Pennsylvania Rules of Evidence governs the admission

of prior bad acts evidence.     Such evidence is not admissible to show the

defendant's criminal character or propensity to commit crimes. See Pa.R.E.

404(b)(1).    Evidence of other crimes, wrongs or acts may be admitted,

however, to show motive, opportunity, intent, preparation, plan, knowledge,

identity or absence of mistake or lack of accident and is admissible in a

criminal case only where the probative value of the evidence outweighs its

potential for unfair prejudice. See Pa.R.E. 404(b)(2). Since this list is not

exhaustive, Pa.R.E. 404, Cmt., “courts are not restricted to the[se exceptions]


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when exercising their discretion to permit the admission of evidence of prior

crimes, wrongs and acts, so long as the evidence is used for purposes other

than to prove character or a propensity to act in accordance with traits of

character.” Commonwealth v. Johnson, 160 A.3d 127, 144 (Pa. 2017),

cert. denied sub nom., Johnson v. Pennsylvania, 138 S.Ct. 508 (2017).

     To the extent Appellant’s claim challenges the introduction of prior

sexual assaults perpetrated against K.H., we recently reaffirmed that such

proof comes within an exception to the rule against admission of prior bad

acts evidence. In Commonwealth v. Adams-Smith, 209 A.3d 1011 (Pa.

Super. 2019), we reiterated:

     There are limited exceptions to the admission at trial of evidence
     of other crimes or prior bad acts.            [Pa.R.E. 404(b)];
     Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super.
     2010).

     One such exception arises in the prosecution of sexual offenses.
     Evidence of prior sexual relations between defendant and
     his...victim is admissible to show a passion or propensity for illicit
     sexual relations with the victim.      This exception is limited,
     however. The evidence is admissible only when the prior act
     involves the same victim and the two acts are sufficiently
     connected to suggest a continuing course of conduct. The
     admissibility of the evidence is not affected by the fact that the
     prior incidents occurred outside of the statute of limitations.

     Id. (emphasis in original). Evidence that provides the factfinder
     with the res gestae, or complete history, of a crime holds special
     significance. Commonwealth v. Wattley, 880 A.2d 682, 687
     (Pa. Super. 2005), appeal dismissed, 924 A.2d 1203 (Pa. 2007).

     [T]he trial court is not...required to sanitize the trial to eliminate
     all unpleasant facts from...consideration where those facts are
     relevant to the issues at hand and form part of the history and


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      natural development of the events and offenses for which the
      defendant is charged.

      Res gestae evidence is of particular import and significance in
      trials involving sexual assault. By their very nature, sexual assault
      cases have a pronounced dearth of independent eyewitnesses,
      and there is rarely any accompanying physical evidence.... [In
      these] cases the credibility of the complaining witness is always
      an issue.

      Id. (emphasis in original).

Adams-Smith, 209 A.3d at 1020-1021. Applying these principles, the trial

court did not err in permitting the Commonwealth to introduce evidence of

prior sexual assaults involving K.H.

      Appellant is likewise not entitled to relief to the extent he objects to

non-sexual prior bad acts.        As a preliminary matter, Appellant waived this

claim since he failed to develop it in his appellate brief. Notwithstanding, the

contention is meritless.        Appellant’s physical and verbal assaults directed

toward K.H., together with his abuse of household pets, established his

aggressive and intimidating disposition toward members of his household.

Such evidence was relevant to developing a complete history of the crime and

to explain K.H.’s delay in disclosing the abuse.          See Commonwealth v.

Dillon, 925 A.2d 131, 139 (Pa. 2007) (evidence of defendant's physical abuse

of child sexual assault victim's mother and brother that intimidated victim was

admissible   in   trial   for   sex   offense   as   substantive   evidence   in   the

Commonwealth's case-in-chief to explain victim's lack of prompt complaint).




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       Lastly, we are not persuaded in this case that the risk of prejudice

arising from the prior bad acts evidence outweighed the probative value of

such proof.     The challenged evidence was subject to an exception under

Pa.R.E. 404(b) and was highly probative of material issues in the

Commonwealth’s case. Moreover, Appellant’s election to be tried by a judge

instead of a jury substantially diminished the risk of undue prejudice. See

Commonwealth v. O’Brien, 836 A.2d 966, 972 (Pa. Super. 2003); see also

Commonwealth v. Lambert, 765 A.2d 306, 362 (Pa. Super. 2000) (“where

a criminal case proceeds before a judge sitting without a jury, there is a

presumption that [the jurist’s] knowledge, experience and training will enable

him[/her] to disregard inadmissible evidence and other improper elements”).

Appellant’s first claim merits no relief.

       In his second claim, Appellant asserts that the evidence was insufficient

to support his convictions because K.H.’s testimony was inconsistent. See

Appellant’s Brief at 18-19. This claim fails.4

____________________________________________


4  We read Appellant’s sufficiency challenge as asserting that the
Commonwealth failed to establish his involvement in criminal activity vel non,
given the inconsistency in the victim’s testimony. As such, we have addressed
his claim on the merits. To the extent, however, that Appellant intended to
challenge the sufficiency of the evidence introduced to establish a specific
element or offense, we conclude that his challenge is subject to waiver. In
his Rule 1925(b) concise statement, Appellant failed to specify which
conviction or which element of his crimes lacked sufficient evidence. This
omission waives appellate review of all specific sufficiency challenges. See
Commonwealth v. Roche, 153 A.3d 1063, 1072 (Pa. Super. 2017) (despite
Commonwealth’s failure to object and trial court’s consideration of the issue,



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       We review a challenge to the sufficiency of the evidence under the

following standard:

       As a general matter, our standard of review of sufficiency claims
       requires that we evaluate the record in the light most favorable to
       the verdict winner giving the prosecution the benefit of all
       reasonable inferences to be drawn from the evidence. 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.
       Nevertheless, the Commonwealth need not establish guilt to a
       mathematical certainty. Any doubt about the defendant's guilt is
       to be resolved by the fact finder unless the evidence is so weak
       and inconclusive that, as a matter of law, no probability of fact
       can be drawn from the combined circumstances.

       The Commonwealth may sustain its burden by means of wholly
       circumstantial evidence. Accordingly, [t]he fact that the evidence
       establishing a defendant's participation in a crime is circumstantial
       does not preclude a conviction where the evidence coupled with
       the reasonable inferences drawn therefrom overcomes the
       presumption of innocence. Significantly, we may not substitute
       our judgment for that of the fact finder; thus, so long as the
       evidence adduced, accepted in the light most favorable to the
       Commonwealth, demonstrates the respective elements of a
       defendant's crimes beyond a reasonable doubt, the appellant's
       convictions will be upheld.

Commonwealth v. Selbolka, 205 A.3d 329, 336-337 (Pa. Super. 2019)

(noting that “the [fact finder], which passes upon the weight and credibility of



____________________________________________


sufficiency claim subject to waiver on appeal where appellant failed to specify
in Rule 1925(b) statement which elements were insufficiently developed),
appeal denied, 169 A.3d 599 (Pa. 2017); see also Commonwealth v. Stiles,
143 A.3d 968, 982 (Pa. Super. 2016) (“Such specificity is of particular
importance in cases where, as here, the appellant was convicted of multiple
crimes each of which contains numerous elements that the Commonwealth
must prove beyond a reasonable doubt.”), appeal denied, 163 A.3d 403 (Pa.
2016).

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each witness's testimony, is free to believe all, part, or none of the

evidence.”).

       Contrary to Appellant’s contention, the trial court found that K.H.’s

testimony regarding abuse was credible, compelling, and truthful. See Trial

Court Opinion, 8/13/18, at 6. After reviewing the record, we concur in this

determination.     In essence, Appellant’s claim asks us to re-weigh the fact

finder’s assessments, which we are forbidden to do. See Commonwealth v.

Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014) (stating variances in

testimony go to credibility of witnesses and not sufficiency of evidence, and

mere conflict in testimony does not render evidence insufficient because it is

within province of fact finder to determine weight to be given to testimony

and to believe all, part, or none of evidence) (citations omitted). Appellant’s

sufficiency challenge merits no relief.

       In his third claim, Appellant asserts that his SVP classification is illegal

given this Court’s decision in Commonwealth v. Butler, 173 A.3d 1212 (Pa.

Super. 2017), appeal granted, 190 A.3d 581 (Pa. 2018).5 The Commonwealth

concedes this contention. See Commonwealth’s Brief at 15. Notwithstanding

____________________________________________


5  In Butler, this Court held that SORNA’s mechanism for determining SVP
status, which did not entail underlying determinations by a fact finder beyond
a reasonable doubt, was unconstitutional in view of a prior Pennsylvania
Supreme Court decision holding that the registration requirements under
SORNA constituted criminal punishment.          See Butler, 173 A.3d at
1217-1218.




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this agreement between the parties, however, our review of the circumstances

of this appeal has uncovered additional issues relating to the legality of the

registration terms of Appellant’s sentence. We outline these concerns below.6

       Recent appellate decisions proscribe retroactive application of sex

offender registration terms under SORNA to offenses committed before the

effective date of that statute, concluding that such application violates

constitutional provisions and results in unlawful sentences. Since Appellant is

on direct review and his judgment of sentence has not yet become final, we

examine the potential illegality of Appellant's sentence sua sponte.      See

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

(challenges to illegal sentence cannot be waived and may be raised by this


____________________________________________


6 As we stated in footnote two, no sentencing transcript can be located in the
certified record and it is uncertain from the acknowledgement form signed by
Appellant whether his registration term and requirements, as well as his SVP
status, rested upon an application of SORNA. In addition, neither the trial
court nor the parties have addressed the source or legality of Appellant’s
registration requirements. Despite this, the parties agree, based upon this
Court’s decision in Butler, that Appellant’s SVP designation is unlawful and
must be vacated. Since Butler examined the SVP process in the wake of a
Pennsylvania Supreme Court decision which held that registration
requirements under SORNA constituted criminal punishment, we strongly
suspect that Appellant’s SVP designation and registration requirements
derived from the application of SORNA. We also reach this preliminary
determination in view of the fact that Appellant’s sentencing on March 21,
2014 occurred approximately one year and three months after the December
2012 effective date of SORNA and long before publication of any appellate
authority raised questions about the retroactive application of SORNA’s
registration requirements.       Because of the likelihood that Appellant’s
registration terms derived from an application of SORNA, we find it necessary
to discuss the need to review carefully the registration requirements imposed
in this case.

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

vacated).

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

138 S.Ct. 925 (2018), our Supreme Court held that SORNA’s registration

requirements constitute criminal punishment. A criminal statute may violate

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

Constitutions if it is applied to events which occurred before the law was

effective and the law disadvantages the offender. Id. at 1196.        “SORNA

additionally violates the ex post facto clause of the Pennsylvania Constitution

because it places a unique burden on the right to reputation and undermines

the   finality   of   sentences   by   demanding   more   severe   registration

requirements.” Adams-Smith, 209 A.3d at 1022, citing Muniz, 164 A.3d at

1223.       Under Muniz, retroactive application of SORNA’s registration

requirements to cases in which the offenses occurred before December 20,

2012 constitutes an unlawful punishment. Id. at 1219.

        Appellant committed his offenses between 2001 and 2010, before the

December 20, 2012 effective date of SORNA. See 42 Pa.C.S.A. §§ 9799.10,

9799.41. SORNA’s predecessor statutes applied at various times throughout

the period during which Appellant committed the instant offenses and may

have required lifetime registration for Appellant's sex offenses. See e.g. 42

Pa.C.S.A. § 9795.1(b)(2) (Megan’s Law III which expired on December 19,

2012).    While SORNA also imposes lifetime registration for Appellant’s sex


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offenses, it does so with enhanced reporting requirements. See 42 Pa.C.S.A.

§§ 9799.14(d)(2), (4), (8) and 9799.15(a)(3), (6). Because Appellant

committed his offenses before the effective date of SORNA, the statute’s

enhanced reporting scheme, if applied here, would constitute greater

punishment for Appellant and thus implicate a violation of the ex post facto

clauses of both the United States and Pennsylvania Constitutions. See Muniz,

supra.

      The upshot of the foregoing discussion is that, in addition to termination

of Appellant’s SVP designation (if imposed pursuant to SORNA), Appellant may

also be entitled to relief under Muniz, if SORNA’s enhanced registration

requirements were retroactively (and, thus, unlawfully) applied. Accordingly,

we affirm Appellant’s convictions but vacate his SVP classification, as well as

his judgment of sentence, to the extent either the SVP designation or the

registration requirements were imposed under SORNA. We remand this case

to the trial court to assess the statutory source for Appellant’s SVP designation

and registration requirements and to advise Appellant about any reporting

requirements that properly apply.

      Judgment of sentence affirmed in part and vacated in part. Appellant’s

convictions are affirmed. SORNA registration requirements and SVP status

are vacated. Case remanded with instructions. Jurisdiction relinquished.

      Judge Stabile joins this Memorandum.




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      Judge Strassburger files a Concurring Memorandum in which Judge

Stabile joins.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2019




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