J-S58037-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

JEFFREY R. RITENOUR

                            Appellant                     No. 581 WDA 2014


              Appeal from the Judgment of Sentence April 1, 2014
                In the Court of Common Pleas of Fayette County
              Criminal Division at No(s): CP-26-CR-0000209-2013


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                            FILED OCTOBER 6, 2014

       Appellant, Jeffrey R. Ritenour, appeals from the judgment of sentence

entered in the Fayette County Court of Common Pleas, following his jury trial

convictions for statutory sexual assault, aggravated indecent assault,

corruption of minors, and simple assault.1 We affirm.

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

The minor victim and Appellant are distant cousins who have known each

other for a long time. The victim testified that on May 24, 2012, she and

Appellant went on a walk together.             While they were walking, Appellant

asked the victim to have sex with him; and the victim refused. Appellant
____________________________________________


1
  18 Pa.C.S.A. §§ 3122.1(b), 3125(a)(8), 6301(a)(1)(ii), and 2701(a)(3),
respectively.


_________________________

*Retired Senior Judge assigned to the Superior Court.
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then pushed the victim to the ground, climbed on top of her, and removed

her shorts.    Appellant touched the victim all over her body, including her



The victim testified that she and Appellant walked on the same trail and

engaged in nonconsensual sexual intercourse on two other occasions, in

June and July of 2012. Appellant was fifty-one (51) years old at the time of

the offenses. The victim was fourteen (14) years old at the time of the first

assault, and fifteen (15) years old at the time of the second and third

assaults.

        The victim told her ex-                                                -



trial, a Pennsylvania State Trooper testified th

residence as part of the investigation. Appellant initially denied the assaults,

but he eventually confessed to the first assault, which occurred on May 24,

2012.     The trooper read Appellant his Miranda2 warnings, and Appellant

r



        A jury convicted Appellant on January 9, 2014, of statutory sexual

assault, aggravated indecent assault, corruption of minors, and simple

assault. On April 1, 2014, the court sentenced Appellant to three (3) to ten

____________________________________________


2
    Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).



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requirement under the Sex Offender Registration and Notification Act
             3
                 Appellant did not file any post-sentence motions.   Appellant

timely filed a notice of appeal on April 11, 2014. That same day, the court

ordered Appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied.

       Appellant raises the following issues for our review:

          DID THE COMMONWEALTH FAIL TO PROVE BEYOND A
          REASONABLE DOUBT THAT APPELLANT HAD ANY
          UNLAWFUL CONTACT WITH THE MINOR VICTIM?

          IS IT UNCONSTITUTIONAL TO REQUIRE APPELLANT TO
          REGISTER FOR A LIFETIME WHEN SAID REGISTRATION
          REQUIREMENT EXCEEDS THE STATUTORY MAXIMUM


          IS  [SORNA]    UNCONSTITUTIONAL     IN           REQUIRING
          APPELLANT TO REGISTER FOR A LIFETIME?



       In his first issue, Appellant argues the Commonwealth provided

insufficient evidence to prove his guilt. Appellant contends the victim did not

____________________________________________


3

on December 20, 2012. By its terms, any individual who was then being
supervised by the board of p
Commonwealth v. Partee, 86 A.3d 245, 246 (Pa.Super. 2014). SORNA

supervision of sex offenders. SORNA designates a conviction for statutory

subjecting a defendant to a lifetime registration requirement. 42 Pa.C.S.A. §
9799.14(d)(3); 42 Pa.C.S.A. § 9799.15(a)(3).



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go to a doctor for a physical examination, and the Commonwealth presented

no medical evidence that the victim had intercourse with Appellant or

anyone else.    Appellant alleges the record does not include any evidence

that the victim resisted or attempted to fight off Appellant. Appellant claims

the victim continued to go on walks alone with Appellant and did not fear

Appellant.     Appellant maintains the Commonwealth failed to present

sufficient evidence to prove beyond a reasonable doubt that the victim ever

had intercourse with Appellant.    Appellant concludes this Court should set

aside the verdict. We disagree.

      Initially, we observe:

         The standard we apply in reviewing the sufficiency of the

         the light most favorable to the verdict winner, there is
         sufficient evidence to enable the fact-finder to find every
         element of the crime beyond a reasonable doubt. In
         applying [the above] test, we may not weigh the evidence
         and substitute our judgment for the fact-finder.           In
         addition, we note that the facts and circumstances
         established by the Commonwealth need not preclude every
         possibility of innocence.      Any doubts regarding a
                                                       -finder unless
         the evidence is so weak and inconclusive that as a matter
         of law no probability of fact may be drawn from the
         combined circumstances. The Commonwealth may sustain
         its burden of proving every element of the crime beyond a
         reasonable doubt by means of wholly circumstantial
         evidence. Moreover, in applying the above test, the entire
         record must be evaluated and all evidence actually
         received must be considered. Finally, the [trier] of fact
         while passing upon the credibility of witnesses and the
         weight of the evidence produced, is free to believe all, part
         or none of the evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal

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denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v.

Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)).

      Instantly, the trial court concluded:

         It cannot be disputed that the age of consent for sexual
         relations in Pennsylvania is 16 years. [18 Pa.C.S.A. §


         signed, written confession to one of the three sexual
         encounters, this ground of insufficiency is so utterly
         without merit as to be frivolous.

(Trial Court Opinion, filed May 2, 2014, at 2-3).     A review of the record



merits no relief. See Hansley, supra.

      In his second and third issues combined, Appellant argues his lifetime

registration requirement under SORNA is unconstitutional.           Appellant

concedes his sentence is legal; however, he contends that imposition of an

additional lifetime registration requirement is an illegal sentence and

unconstitutional.   Appellant claims the lifetime registration requirement is

not merely civil in nature because the court imposes the requirement during

sentencing, and a failure to comply can result in incarceration.    Appellant

maintains the additional registration requirement exceeds the statutory

maximum penalty proscribed for his convictions.        Appellant asserts the

lifetime registration requirement does not accomplish rehabilitation, and

constitutes an unusual punishment.      Appellant concludes this Court should




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illegal. We disagree.

      Preliminarily, we recognize that an appellant may not successfully

advance a new theory of relief for the first time on appeal. Commonwealth

v. Haughwout, 837 A.2d 480, 486 (Pa.Super. 2003) (citation omitted).



when they are not properly presented and preserved in the trial court for our

appellate rev           Commonwealth v. Berryman, 649 A.2d 961, 973



                                                                   Id. (citation

omitted).

      In the present case, Appellant challenged the constitutionality of his

lifetime registration requirement for the first time in his Rule 1925(b)

statement. Appellant failed to raise these issues at sentencing or in a post-



arguably    waived.     See   id.;   Haughwout,     supra.     See     generally

Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278 (Pa.Super.

2004) (reaffirming principle that defendant cannot rectify failure to preserve

issue at trial by proffering it in Rule 1925(b) statement).

      Moreover, the trial court disposed of these claims as follows:

           The    determination   that    a   particular   statute   is
           unconstitutional must be made by the Pennsylvania
           Supreme Court only upon a very clear showing that the
           statute or sentencing provision is not within constitutional
           parameters,     since   constitutionality   is   presumed.
           Nevertheless, the claim of unconstitutionality is waived in

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        that [Appellant] did not raise it in a post-sentence motion
        of any type to allow this [c]ourt to address it.

        [T]his [c]ourt hereby acknowledges the very recent
        holding in Commonwealth v. Neiman, 84 A.3d 603 (Pa.
        2013), which declared Act 152 of 2004, 42 Pa.C.S. § 101-
        9913, unconstitutional as violative of Article III, Section 3,
        of the Pennsylvania State Constitution, because it
        legislatively enacted law for many separate and disparate
        subjects.      The Pennsylvania Supreme Court then

        therein were not severable so as to continue in effect. This
        [c]ourt notes that the Pennsylvania legislature had already
                                                         -enact the

        compliance with the federal Adam Walsh requirements so
        as [to] better protect the citizens of this Commonwealth.


        Law III, are now unconstitutional, the reasons for such

        and/or any of its requirements. The current statute is now

        its own terms, is retroactive. The appellate courts have
        previously determined that the registration requirements

        serve the important purpose of protecting the citizens of
        this Commonwealth from a certain class of offender those
        sexual predators who commit a predicate offense and who
        also suffer from a volitional impairment that makes them
        likely to become recidivists. The Pennsylvania Supreme
        Court more recently reiterated that the registration
        requirements are not an ex post facto violation under the
        United States Constitution, because they do not punish the

        promptly to re-enact the registration requirements of
                 aw, and has now expressly stated that the

        protection.

(Trial Court Opinion at 3-5) (footnotes and some citations omitted).     We

accept this reasoning and see no reason to disturb the trial cour


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to deny relief. Accordingly, we affirm.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2014




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