J-S39005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    JASON GUERRA                               :
                                               :
                       Appellant               :       No. 423 EDA 2018

             Appeal from the Judgment of Sentence June 24, 2016
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0003037-2014


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

MEMORANDUM BY GANTMAN, P.J.E.:                         FILED AUGUST 19, 2019

       Appellant, Jason Guerra, appeals nunc pro tunc from the judgment of

sentence entered in the Philadelphia County Court of Common Pleas, following

his jury trial convictions for one count each of rape, involuntary deviate sexual

intercourse, unlawful contact with a minor, sexual assault, corruption of

minors, simple assault, sexual exploitation of children, trafficking of persons,

and 10 counts of promoting prostitution.1 We affirm in part, vacate in part,

and remand.

       In its opinion, the trial court correctly set forth most of the relevant facts

of this case. Therefore, we have no reason to restate them. We add that

Appellant committed his offenses between November 2012 and May or June

____________________________________________


1  18 Pa.C.S.A. §§ 3121(a)(1); 3123(a)(1); 6318(a)(1); 3124.1;
6301(a)(1)(ii); 2701(a)(1); 6320(a); 3002(a); and 5902, respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
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of 2013. Prior to the current offenses, in 2009, police arrested Appellant for

an alleged assault, and recovered a laptop. Appellant did not request recovery

of this laptop, and it remained in police custody. In 2014, police obtained a

search warrant for Appellant’s residence.       Police executed the search on

January 21, 2014, and recovered a second laptop, among other items.

      On February 8, 2016, Appellant filed a motion to suppress evidence

recovered from Appellant’s laptops, cellphones, and computers based on an

invalid search warrant.    That same day, the court held a hearing where

Appellant specified he was only arguing the invalidity of the 2014 search

warrant. The court denied Appellant’s motion to suppress at the conclusion

of the hearing. On February 17, 2016, a jury convicted Appellant of 10 counts

of promoting prostitution, 6 counts of various sexual offenses, and one count

each of trafficking persons and simple assault. On June 24, 2016, the court

sentenced Appellant to 48 to 96 years’ imprisonment and informed Appellant

of his obligation to register and report for life as a Tier III offender under the

Sexual Offender Registration and Notification Act (“SORNA”). Appellant timely

filed a post-sentence motion on July 1, 2016, which was denied by operation

of law on October 31, 2016.

      On July 18, 2017, Appellant timely filed a pro se petition pursuant to the

Post-Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546. Appointed

counsel filed an amended PCRA petition on October 24, 2017, which sought

reinstatement of Appellant’s post-sentence motion rights and direct appeal


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rights nunc pro tunc. On January 4, 2018, the PCRA court entered an order

reinstating Appellant’s post-sentence motion and direct appeal rights nunc pro

tunc. On Monday, January 15, 2018, Appellant timely filed a post-sentence

motion nunc pro tunc.          Appellant filed a premature notice of appeal on

February 5, 2018. Appellant’s post-sentence motion was denied by operation

of law on May 16, 2018.2 On June 13, 2018, the court ordered Appellant to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). Appellant timely complied on July 5, 2018, and filed a

supplemental Rule 1925(b) statement on October 11, 2018.

       Appellant raises the following issues for our review:

          UNDER THE 4TH AND 14TH AMENDMENTS OF THE UNITED
          STATES CONSTITUTION AND ARTICLE 1, SECTION 8 OF THE
          PENNSYLVANIA CONSTITUTION, WAS THE JANUARY 20,
          2014 SEARCH WARRANT FOR 7607 RUGBY ST. INVALID
          BECAUSE ITS AUTHORITY TO SEARCH WAS VAGUE AND
          OVERBROAD AS IT IS EVEN PHRASED IN A ‘CATCH-ALL’
          FASHION STATING “ALL RECORDS OF THE BACKPAGE
          POSTINGS, PHOTOS, FINANCIAL RECORDS, ETC. ANY AND
          ALL CONTRABAND.”?

          UNDER THE 4TH AND 14TH AMENDMENTS OF THE UNITED
____________________________________________


2 Appellant’s notice of appeal relates forward to May 16, 2018, the date his
post-sentence motion was denied by operation of law. Thus, there are no
jurisdictional impediments to our review. See Commonwealth v. Borrero,
692 A.2d 158 (Pa.Super. 1997) (explaining general rule that if defendant files
timely post-sentence motion, judgment of sentence does not become final for
purposes of appeal until trial court disposes of motion or motion is denied by
operation of law). See also Commonwealth v. Ratushny, 17 A.3d 1269,
1271 n.4 (Pa.Super. 2011) (explaining if court denies appellant’s post-
sentence motion following filing of premature notice of appeal, Superior Court
will treat appellant’s premature notice of appeal as having been filed after
entry of order disposing of post-sentence motion).

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         STATES CONSTITUTION AND ARTICLE 1, SECTION 8 OF THE
         PENNSYLVANIA CONSTITUTION WAS THE TRIAL COURT’S
         AUTHORIZATION TO SEARCH THE 2009 LAPTOP/IPHONE
         VAGUE AND OVERBROAD?

(Appellant’s Brief at 3-4).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Diana Anhalt,

we conclude Appellant’s issues merit no relief.        The trial court opinion

comprehensively discusses and properly disposes of the questions presented.

(See Trial Court Opinion, filed February 14, 2019, at 7-15) (finding: (1) 2014

warrant and corresponding affidavit of probable cause supported probable

cause to believe contraband or evidence of crime would be found within

computers at 7607 Rugby Street in Philadelphia; affidavit of probable cause

stated Victim and two additional witnesses, who worked as prostitutes for

Appellant, noted Appellant would bring his laptop computer from his residence

to hotel where he used it to post BackPage ads; warrant listed specific

information that authorities sought from electronic devices in Appellant’s

home; warrant was sufficiently specific to allow authorities to seize and search

those items; warrant included language limiting its scope and described

equipment believed to have been instrumental to Appellant’s suspected

criminal acts of promoting prostitution and human trafficking; (2) Appellant

did not object to manner of probable cause determination in February 8, 2016

motion or at hearing on that motion; on record, Appellant specifically excluded

2009 materials from February 2016 motion; when court asked if Appellant’s

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argument regarding February 2016 motion excluded 2009 materials, counsel

replied, “That is correct”; at February 2016 hearing, counsel twice agreed on

record to court finding probable cause for search of 2009 materials in lieu of

search warrant, so Appellant waived any objection to search of 2009

materials; moreover, even if Appellant had preserved this issue for appeal, no

relief would be due; court considered motion, heard argument from both

parties, and found sufficient probable cause to search 2009 materials;

Commonwealth presented evidence of statements of women, who had worked

for Appellant as prostitutes, detailing Appellant’s use of his laptop to post ads

on BackPage and to keep expense information; information was enough to

show fair probability that contraband or evidence of crime would be found on

2009 materials; 2009 materials were properly searched). The record supports

the court’s rationale. Accordingly, we affirm Appellant’s issues based on the

trial court opinion.

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

validity of Appellant’s SORNA registration requirements. Thus, we elect to

review the legality of Appellant’s sentence sua sponte. See 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).

         Our Supreme Court declared SORNA unconstitutional, to the
         extent it violates the ex post facto clauses of both the United
         States and Pennsylvania Constitutions. [Commonwealth
         v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017), cert. denied,

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       ___ U.S. ___, 138 S.Ct. 925, 200 L.Ed.2d 213 (2018)]. The
       Muniz court determined SORNA’s purpose was punitive in
       effect, despite the General Assembly’s stated civil remedial
       purpose. SORNA also 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. The effective date of SORNA, December 20,
       2012, controls for purposes of an ex post facto analysis.

       In light of Muniz, this Court also held: “[U]nder Apprendi
       [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d
       435 (2000)] and Alleyne [United States, 570 U.S. 99, 133
       S.Ct. 2151, 186 L.Ed.2d 314 (2013)] a factual finding, such
       as whether a defendant has a mental abnormality or
       personality disorder that makes him…likely to engage in
       predatory sexually violent offenses, that increases the
       length of registration must be found beyond a reasonable
       doubt by the chosen fact-finder.” Butler, supra at 1217
       (addressing SVP status sua sponte as illegal sentence)
       (internal quotations and citations omitted).        See also
       Alleyne, supra (holding any fact that increases mandatory
       minimum sentence for crime is considered element of crime
       to be submitted to factfinder and found beyond reasonable
       doubt). This Court further held: “Section 9799.24(e)(3) of
       SORNA violates the federal and state constitutions because
       it increases the criminal penalty to which a defendant is
       exposed without the chosen fact-finder making the
       necessary factual findings beyond a reasonable doubt.” Id.
       at 1218. The Butler Court concluded that trial courts can
       no longer designate convicted defendants as SVPs or hold
       SVP hearings, “until [the] General Assembly enacts a
       constitutional designation mechanism.”         Id. (vacating
       appellant’s SVP status and remanding to trial court for sole
       purpose of issuing appropriate notice under 42 Pa.C.S.A. §
       9799.23, governing reporting requirements for sex
       offenders, as to appellant’s registration obligation).

       Following Muniz and Butler, the Pennsylvania General
       Assembly enacted legislation to amend SORNA. Act 10
       amended several provisions of SORNA, and also added
       several new sections found at 42 Pa.C.S.A. §§ 9799.42,
       9799.51-9799.75.      In addition, the Governor of
       Pennsylvania signed new legislation striking the Act 10

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           amendments and reenacting several SORNA provisions,
           effective June 12, 2018. Through Act 10, as amended in Act
           29, the General Assembly created Subchapter I, which
           addresses sexual offenders who committed an offense on or
           after April 22, 1996, but before December 20, 2012.
           Subchapter I contains less stringent reporting requirements
           than Subchapter H, which applies to offenders who
           committed an offense on or after December 20, 2012.

Commonwealth v. Alston, 2019 PA Super 178, *2-*3 (filed June 6, 2019)

(footnotes and some internal citations omitted).       “[W]hen an appellant's

offenses straddle the effective dates of Subchapters H and I of SORNA, he is

entitled to the lower reporting requirements of Subchapter I, absent a specific

finding of when the offenses related to the convictions actually occurred.” Id.

at *3.

         Instantly, Appellant committed sexual offenses between November

2012 and May or June of 2013. A jury convicted Appellant of numerous sexual

offenses but did not specifically find the dates when Appellant committed his

offenses. Appellant’s offenses straddled the operative dates for Subchapters

H and I.      Without a specific jury finding of when the offenses occurred,

Appellant is entitled to the lower punishment. See id. Accordingly, we affirm

in part and vacate in part regarding Appellant’s SVP status/SORNA reporting

requirements; we remand the case for the court to give Appellant proper

registration and reporting requirements.

         Judgment of sentence affirmed in part and 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: 8/19/19




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