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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ALVIN MOORE                                :
                                               :
                       Appellant               :   No. 735 MDA 2017

             Appeal from the Judgment of Sentence March 24, 2017
      In the Court of Common Pleas of Luzerne County Criminal Division at
                        No(s): CP-40-CR-0003639-2015


BEFORE:       PANELLA, J., NICHOLS, J., and PLATT, J. *

MEMORANDUM BY NICHOLS, J.:                         FILED SEPTEMBER 26, 2018

        Appellant Alvin Moore appeals from the judgment of sentence of forty

to eighty month’s imprisonment for failing to register as a sexual offender

under former Section 4915(a)(1).1 Appellant claims that his conviction must

be vacated in light of Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).

We agree that we are constrained to vacate the judgment of sentence.

However, we remand this matter to the trial court for further proceedings

consistent with this memorandum.

        The procedural and factual history of this appeal is not in dispute. On

April 16, 1998, Appellant pled guilty to one count each of rape and involuntary


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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. § 4915.1(a)(1).
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deviate sexual intercourse for offenses committed in 1993 (1998 conviction).

At the time of Appellant’s 1998 conviction, Megan’s Law I was in effect and

required him to register for ten years.2          In 2000, while Appellant was

incarcerated, Megan’s Law II took effect and required that Appellant register

for life.3

       Appellant was released from incarceration in July 2005, when Megan’s

Law III was in effect. Upon Appellant’s release, a counselor informed him that

he needed to notify authorities of a change in residence within ten days.4

Appellant left Pennsylvania for Virginia and then moved to New York.


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2 See 42 Pa.C.S. §§ 9791-9795 (expired); see also Commonwealth v.
Gaffney, 733 A.2d 616, 622 (Pa. 1999) (rejecting an offender’s ex post facto
claim regarding Megan’s Law I).

3 See 42 Pa.C.S. §§ 9791-9799.9 (expired); see also Commonwealth v.
Derhammer, 173 A.3d 723, 725 (Pa. 2017) (citing 42 Pa.C.S. § 9795.1(b)(2)
(expired)); Commonwealth v. Anthony, 841 A.2d 542, 544-45 (Pa. Super.
2004) (rejecting an offender’s ex post facto claim regarding Megan’s Law II).

4   As noted in Derhammer,

       [Lifetime registrants under Megan’s Law II] were given ten days
       to notify the state police of address changes. See id. §
       9795.2(a)(2) (2000). Any failure to make timely notification
       constituted a first-degree felony, subjecting the registrant to a
       mandatory minimum sentence of probation for life and to a
       discretionary sentence of up to life in prison. Id. § 9795.2(d)(2)
       (2000).[fn3]
             [fn3]This
                     penalty provision was held to be unconstitutionally
             punitive relative to persons classified as sexually violent
             predators, as that status could be established without proof



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       In 2012, the former version of the Sexual Offender Registration and

Notification Act (SORNA)5 took effect. See 42 Pa.C.S. §§ 9799.10-9799.41

(subsequently amended).          Under SORNA, Appellant’s 1998 conviction was

classified as a Tier III offense and carried a lifetime registration requirement.6

See 42 Pa.C.S. §§ 9799.14(d), 9799.15(a)(3) (subsequently amended).

       In August 2015, the Pittstown, Pennsylvania police department received

information that Appellant was residing at 20 Wilford Street in Pittstown. An

investigation revealed that Appellant was subject to a lifetime registration

requirement, was receiving mail at the Wilford Street residence, and was seen

staying at the residence, but had not registered a residence in Pennsylvania.
____________________________________________


          to a jury beyond a reasonable doubt. See [Commonwealth
          v. Williams, 832 A.2d 962, 985 (Pa. 2003)].

Derhammer, 173 A.3d at 725 & n.3.

5 For the purpose of this memorandum, SORNA refers to the former version
of the statute that was considered in Muniz. We note that the General
Assembly amended SORNA in response to Muniz in February of 2018, added
Subchapter I regarding sexual offenders who committed offenses before
December 20, 2012, see 42 Pa.C.S. § 9799.51-9799.75, and created a new
failure to register provision for offenders required to register as required under
Subchapter I. See 18 Pa.C.S. § 4915.2. Currently, Section 4915.1 applies to
offenders who committed predicate crimes after December 20, 2012. Because
Appellant was convicted under former Section 4915.1, we do not consider the
applicability of these recent changes in the law.

6 SORNA created a new verification process requiring sexual offenders to
report a change of address in person within three days. See 42 Pa.C.S. §
9799(g)(2). With SORNA taking effect, the former provision addressing the
failure to register, 18 Pa.C.S. § 4915 (expired), was allowed to expire in 2012.
Section 4915.1 replaced former Section 4915.



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       The police arrested Appellant on August 27, 2015, and Appellant was

initially charged under an expired version of the failing to register provision.

See 18 Pa.C.S. § 4915 (expired). The Commonwealth amended the charge

to former section 4915.1(a)(1), which was in force at that time.

       Appellant proceeded to a nonjury trial at which the Commonwealth

presented the testimony of the investigating detective and a mail carrier.

Additionally, the Commonwealth admitted evidence that Appellant reviewed

and signed a Megan’s Law notification packet when he was released from

prison in 2005.7

       Appellant testified that he maintained a residence in New York and was

merely visiting his friend, Sabrina Keating, at the Wilford Street address.

Appellant maintained that he was only thinking about moving back to

Pennsylvania when he was arrested. Keating testified in support of Appellant’s

claim that he would visit overnight, but did not reside at the Wilford Street

residence.

       The trial court found Appellant guilty of violating Section 4915.1(a)(1).

On March 24, 2017, the court sentenced Appellant to forty to eighty months’

imprisonment. Appellant timely filed post-sentence motions, which the court

denied on April 21, 2017.

       Appellant timely appealed.          On June 28, 2017, after obtaining an

extension of time, Appellant filed a Pa.R.A.P. 1925(b) statement purporting to
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7At trial, the Commonwealth proceeded as if Appellant had failed to register
under the ten-day update period in effect at the time of Appellant’s release.

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challenge the sufficiency of the evidence in light of his and Keating’s

testimony. Three weeks later, on July 19, 2017, the Pennsylvania Supreme

Court decided Muniz. Appellant did not seek leave to file an amended Rule

1925(b) statement in the trial court.

       On November 21, 2017, the trial court filed an opinion responding to

Appellant’s Rule 1925(b) statement. On January 8, 2018, Appellant filed an

application for relief in this Court seeking remand for the filing of a

supplemental Rule 1925(b) statement to include an issue based on Muniz.

Alternatively, Appellant sought leave to raise Muniz in his brief. This Court

granted Appellant leave to address the applicability of Muniz in his brief.8

Order, 1/12/18.

       Appellant raises the following issue for review: “Whether Appellant’s

conviction under [SORNA] violate[s] the Ex Post Facto clauses of the

Pennsylvania and United States Constitutions.” Appellant’s Brief at 1.

       Appellant asserts that Muniz “held that the provisions of SORNA which

obligate a person to register, verify or provide information to the Pennsylvania

State Police cannot apply retroactively where an underlying sexual offense

occurred prior to December 20, 2012.” Id. at 8 (emphasis in original). From

this, Appellant argues that he “never should have been subject to SORNA’s

requirements and cannot be punished for failure to abide by [those

requirements].” Id. at 7.
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8Given this procedural history, the trial court did not have an opportunity to
address Appellant’s Muniz claim.

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       The Commonwealth does not contest Appellant’s assertion that SORNA

should not apply retroactively to him. See Commonwealth’s Brief at 6. The

Commonwealth suggests, however, that Appellant’s claim based on Muniz

must be raised as a collateral challenge to his 1998 conviction. Id.

       We regard Appellant’s arguments as a challenge to the sufficiency of the

evidence.9    See Appellant’s Brief at 7 (asserting that Appellant cannot be

punished for his failure to comply with a registration requirement that did not

apply to him). Thus,

       we must determine whether the evidence admitted at trial, as well
       as all reasonable inferences drawn therefrom, when viewed in the
       light most favorable to the verdict winner, are sufficient to support
       all the elements of the offense. Additionally, to sustain a
       conviction, the facts and circumstances which the Commonwealth
       must prove, must be such that every essential element of the
       crime is established beyond a reasonable doubt.

Commonwealth v. Moreno, 14 A.3d 133, 136 (Pa. Super. 2011) (citations

omitted). All issues raised in this appeal involve questions of law. Thus, the

standard of our review is de novo, and the scope of our review is plenary. See

Commonwealth           v.   Giulian,     141     A.3d   1262,   1266   (Pa.   2016);

Commonwealth v. Horning, ___ A.3d ___, 2018 PA Super 204, 2018 WL

3372367, at *2 (filed July 11, 2018); Commonwealth v. Giron, 155 A.3d

635, 638 (Pa. Super. 2017).

____________________________________________


9 Because Appellant’s claim goes to the sufficiency of the evidence, we discern
no merit to the Commonwealth’s argument that Appellant’s challenge to the
instant conviction must be deferred to a post-conviction collateral proceeding
related to the 1998 conviction.

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      Section 4915.1 provides, in relevant part:

      (a) Offense defined.—An individual who is subject to
      registration under 42 Pa.C.S. § 9799.13 (relating to applicability)
      commits an offense if he knowingly fails to:

         (1) register with the Pennsylvania State Police as required
         under 42 Pa.C.S. § 9799.15 (relating to period of
         registration), 9799.19 (relating to initial registration) or
         9799.25 (relating to verification by sexual offenders and
         Pennsylvania State Police)[.]

18 Pa.C.S. § 4915.1(a) (emphasis added). Thus, the failure to register “as

required under 42 Pa.C.S. § 9799.15” is an element of the offense under

Section 4915.1(a). See 18 Pa.C.S. § 103 (defining an element of an offense

as conduct or an attendant circumstance that is “included in the description of

the forbidden conduct in the definition of the offense”).

      At the time of Appellant’s conviction, Section 9799.15 set forth the

following relevant requirement:

      (g) In-person appearance to update information.—In
      addition to the periodic in-person appearance . . . an individual
      specified in section 9799.13 [as a sexual offender required to
      register] shall appear in person at an approved registration site
      within three business days to provide current information relating
      to:

                                     ***

         (2) A commencement of residence, change in residence,
         termination of residence or failure to maintain a residence, thus
         making the individual a transient.

42 Pa.C.S. § 9799.15(g)(2).

      Although not in dispute in the present appeal, the following background

to Muniz is relevant. In Muniz, the offender was found guilty of indecent

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assault in 2007. Muniz, 164 A.3d at 1193. Sentencing was initially scheduled

for May 8, 2007, at which time the offender would have been subject to a ten-

year registration period under Megan’s Law III.         Id.    However, before

sentencing, the offender fled Pennsylvania and was not returned to the

Pennsylvania until 2014, at which time SORNA was in effect and required the

imposition of a lifetime registration requirement. Id. After sentencing, the

offender filed a post-sentence motion claiming that a ten-year registration

period applied, which the trial court denied. Id.      This Court affirmed the

offender’s conviction.

       Five of the six participating justices in Muniz10 concluded that SORNA

constituted an ex post facto law.11 See id. at 1218 (Dougherty, J., with Baer
____________________________________________


10Justice Dougherty authored the lead opinion in Muniz, which Justices Baer
and Donahue joined. Justices Wecht and Todd joined parts of the lead opinion,
and Justice Wecht filed a concurring opinion, which Justice Todd joined. Chief
Justice Saylor filed a dissenting opinion. Justice Mundy did not participate.

11 When considering whether a law violates ex post facto principles, a court
follows a two-part test. See Williams, 832 A.2d at 971. First, a court must
consider “whether the legislature’s intent was to impose punishment[.]” Id.
Second, if the intent was not to impose punishment, a court considers
“whether the statutory scheme is nonetheless so punitive either in purpose or
effect as to negate the legislature’s non-punitive intent.” Id. A court’s
analysis of the second part of the test is guided by multiple factors, including:

       (1) whether the sanction involves an affirmative disability or
       restraint; (2) whether it has historically been regarded as
       punishment; (3) whether it comes into play only on a finding of
       scienter; (4) whether its operation will promote the traditional
       aims of punishment—retribution and deterrence; (5) whether the
       behavior to which it applies is already a crime; (6) whether an
       alternative purpose to which it may rationally be connected is



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and Donahue, JJ. joining) (“the retroactive application of SORNA to appellant

violate[d] the ex post facto clause of the United States Constitution”) & 1223

(holding that “SORNA’s registration provisions [were] also unconstitutional

under the state [ex post facto] clause”); id. at 1224 ( (Wecht, J., concurring,

with Todd, J. joining) (“the retroactive application of [SORNA] violates Article

I, Section 17 of the Pennsylvania Constitution”).     Notably, the majority of

justices found it appropriate to consider SORNA as a whole and concluded that

the registration requirements, as well as the publication requirements, favored

finding that SORNA is “punitive in effect despite its expressed civil remedial

purpose.” Id. at 1208-18; see also id. at 1224.

       More recently, in Horning, this Court followed Muniz and concluded the

application of the former version of SORNA was unconstitutional as applied to

an offender who committed crimes including rape and involuntary deviate

sexual intercourse between 2002 and 2004. Horning, 2018 WL 3372367 at

*1-2. At the time of the offender committed his crimes in Horning, Megan’s

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       assignable for it; and (7) whether it appears excessive in relation
       to the alternative purpose assigned.

Id. at 973 (reciting the factors enunciated in Kennedy v. Mendoza–
Martinez, 372 U.S. 144, 168-69 (1963)).

Further, a penal law must be “retrospective,” disadvantage a defendant, and
fall within one of four categories of ex post facto laws recognized in Calder v.
Bull, 3 U.S. 386 (1798). Muniz, 164 A.3d at 1195-96 (citation omitted). A
law that “changes the punishment, and inflicts a greater punishment,” than
the prior law is recognized as an ex post facto law. Id. at 1195 (citation
omitted).


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Law II was in effect and required that he register for life. Id. at *4. The

offender pled to the guilty to charges and was sentenced in 2017. Id. at *1-

2. At that time, the offender was ordered to register for life under the former

version of SORNA. Id. at *2. This Court concluded:

      While SORNA did not enhance the registration period for [the
      offenses], it did augment the registration requirements for all Tier
      III offenders, which included quarterly in-person reporting and the
      posting of their personal information on the Pennsylvania State
      Police website. As our Supreme Court pointed out in Muniz, these
      additional registration requirements constitute a greater
      punishment than what Megan’s Law would have imposed and
      consequently, their retroactive application violates the ex post
      facto clause of the Pennsylvania Constitution.

Id. at *5 (citations and italics omitted).

      Returning to the specific issue in this appeal, Appellant’s conviction for

failing   to   register   under   former   Section   4915.1(a)(1)   required   the

Commonwealth to prove that Appellant failed to register “as required under

42 Pa.C.S. § 9799.15.” See 18 Pa.C.S. § 4915.1(a)(1). However, Appellant,

like the offenders in Muniz and Horning, committed the underlying sexual

offenses before the enactment of SORNA.

      Thus, pursuant to Muniz, Appellant could not have been required to

comply with SORNA, including Section 9799.15, without violating the

prohibition against ex post facto laws. See Muniz, 164 A.3d at 1223 (vacating

that portion of the sentence requiring the offender to comply with SORNA);

Horning, 2018 WL 3372367 at *5. It follows that Appellant could not be

convicted for failing to register as required under SORNA, when imposing a


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duty to do so would be unconstitutional.         Therefore, we conclude that

Appellant’s conviction for failing to register under former section 4915.1 must

be vacated.

      Nevertheless, it is undisputed that Appellant committed rape and

involuntary deviate sexual intercourse in 1993 for which he was convicted in

1998. Accordingly, we remand this case to the trial court to determine and,

if necessary, notify Appellant of his registration requirements.

      Judgment of sentence vacated.           Case remanded for proceedings

consistent with this memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2018




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