J-S54006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
          v.                                   :
                                               :
                                               :
BENEDICTO PEREZ                                :
                                               :
                 Appellant                     :   No. 841 WDA 2016

                Appeal from the Judgment of Sentence May 17, 2016
                 In the Court of Common Pleas of Allegheny County
                Criminal Division at No(s): CP-02-CR-0014260-2014

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
          v.                                   :
                                               :
                                               :
BENEDICTO PEREZ                                :
                                               :
                 Appellant                     :   No. 1377 WDA 2016

               Appeal from the Judgment of Sentence August 19, 2016
                 In the Court of Common Pleas of Allegheny County
                Criminal Division at No(s): CP-02-CR-0014260-2014


BEFORE:        OTT, J., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                               FILED DECEMBER 13, 2017

        In this consolidated appeal, Benedicto Perez appeals from the judgment

of sentence, entered May 17, 2016, in the Court of Common Pleas of Allegheny

County. Perez filed another appeal from the judgment of sentence, following

____________________________________________


*   Former Justice specially assigned to the Superior Court.
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the trial court’s August 19, 2016, determination that he is a sexually violent

predator (SVP).1 A jury found Perez guilty of three counts of indecent assault,2

one count of unlawful contact with minors,3 one count of endangering welfare

of children (EWOC),4 and two counts of corruption of minors.5 The trial court

sentenced Perez to an aggregate term of four to 12 years’ imprisonment,

followed by six years’ probation.              The trial court also imposed lifetime

registration requirements at Counts 1 and 2 (indecent assault – person less

than 13 years of age), Count 5 (EWOC), and Count 6 (corruption of minors),

pursuant to SORNA.6 On August 19, 2016, the trial court conducted a hearing

and found Perez to be an SVP. Perez raises five issues on appeal, namely, (1)

the trial court erred in denying his motion for discovery, (2) the trial court

abused its discretion by imposing a manifestly excessive and unreasonable


____________________________________________


1   On November 17, 2016, this Court consolidated these appeals sua sponte.

2 18 Pa.C.S. § 3126(a)(7) (victim under age of 13, course of conduct), 18
Pa.C.S. § 3126(a)(7) (victim under age of 13), and 18 Pa.C.S. § 3126(a)(8)
(defendant 4 or more years older than victim, not married to victim).

3   18 Pa.C.S. § 6318(a)(1).

4   18 Pa.C.S. 4304(a), (b)(ii).

5 18 Pa.C.S. § 6301(a)(1)(ii) (sexual conduct, course of conduct) and 18
Pa.C.S. § 6301(a)(1) (sexual conduct).

6 Sexual Offenders Registration and Notification Act (SORNA), 42 Pa.C.S. §
9799.10 et seq. See 42 Pa.C.S. § 9799.13(1) (SORNA applies to a person
convicted of a “sexually violent offense” on or after the effective date of the
section, which was December 20, 2012).


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sentence, (3) there was insufficient evidence to support the SVP determination

because the Commonwealth’s SVP expert lacked a proper basis to form an

opinion, (4) there was insufficient evidence to support the SVP determination

because he did not meet certain enumerated criteria in 42 Pa.C.S. §

9799.24(b), and (5) the trial court erred in imposing a lifetime registration

under SORNA on Counts 4, 5, and 6. For the reasons set forth below, we

vacate the judgment of sentence as to Perez’s SVP designation, as well as the

lifetime registration requirement at Count 5, and the lifetime registration

requirement at Count 6 is amended to the proper registration requirement of

15 years; we affirm the judgment of sentence in all other respects and we

remand this case to the trial court for the sole purpose of issuing the

appropriate notice under 42 Pa.C.S. § 9799.23 as to Perez’s registration

obligation at Count 6 for a period of 15 years.

       The parties are well acquainted with the facts of this case, which are

fully set out in the trial court’s opinion and, therefore, we need not restate

them here.      See Trial Court Opinion, 1/17/2017, at 3–5.        Briefly, Perez’s

convictions arose from his sexual abuse of his minor stepdaughter. The jury

found Perez guilty, as discussed above, and the trial court sentenced Perez

and found him to be an SVP.         This consolidated appeal followed.7

____________________________________________


7 Perez timely complied with the orders of the trial court to file Pa.R.A.P.
1925(b) concise statements.




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       Perez first argues that “[t]he trial court erred when it denied [his]

motion for discovery seeking to have the Commonwealth provide copies of

DVD records of the victim’s interview by detectives/police officers with the

Mesa Police Department.” Perez’s Brief at 18.

       Perez argues because the Commonwealth merely provided transcripts

of interviews of the victim and her siblings, trial counsel filed a motion to

obtain a copy of the DVDs, but the trial court only ordered the DVDs be made

available for viewing at the District Attorney’s Office. Id. Perez argues that

since he was incarcerated, it was impossible for trial counsel and Perez to sit

together to watch the interviews. Id.

       At issue in this appeal is only the DVD of the victim’s interview. Perez

claims “[s]uch discovery material was pivotal for impeachment purposes.”

Perez’s Brief at 20. Perez maintains:

       Given that the DVDs were the original evidence, it would have help
       [sic] establish prior inconsistent statements, statements reflecting
       the victim’s statement variations, other known conditions that
       could affect the victim’s bias such as animosity toward [Perez] or
       other issues that could affect the victim’s ability to perceive and
       recall events.


____________________________________________


      On June 13, 2016, following the May 17, 2016, sentencing hearing,
Perez filed a notice of appeal from the judgment of sentence, and filed his
concise statement on August 11, 2016. The trial court issued its opinion on
January 17, 2017.

       On September 12, 2016, following the trial court’s August 19, 2016, SVP
determination, Perez filed a notice of appeal from the judgment of sentence,
and filed his concise statement on March 31, 2017. The trial court issued its
opinion on April 12, 2017.

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Id.

      The trial court has broad discretion in choosing a discovery remedy.

Commonwealth v. Maldonodo, ___ A.3d ___, ___ [2017 Pa. Super. LEXIS

698] (Pa. Super. September 12, 2017) (en banc), petition for allowance of

appeal pending at 470 EAL 2017 (Pa. 2017). Here, the trial court reasoned:

      [Perez] first alleges that this Court erred in denying the pretrial
      discovery motion request for DVD copies of the victim’s interview
      with the police. [Perez] sought copies of interviews with the victim
      and her siblings which were conducted by police detectives. The
      Commonwealth indicated that their policy was to not turn over
      copies of these interviews. This Court permitted [Perez] and
      counsel to view the DVD in the Office of the District Attorney and
      to transcribe the statements on the DVD for use at trial.

      “The Commonwealth has no duty to provide evidence in a form
      that the defendant demands for the convenience of the defense.”
      Commonwealth v. Robinson, 2015 PA Super 165, 122 A.3d
      367, 373, reargument denied (Oct. 9, 2015), appeal denied sub
      nom. Commonwealth v. Green, 130 A.3d 1287 (Pa. 2015), and
      appeal denied, 130 A.3d 1289 (Pa. 2015). “Appellant requested
      tape recordings of conversations between decedent and William
      Livezey. Typewritten transcripts were provided. We find that to
      be sufficient. There was no abuse of discretion in any of the trial
      court’s discovery rulings.” Commonwealth v. Colson, 490 A.2d
      811, 823 (Pa. 1985).        Since this Court gave [Perez] the
      opportunity to review the DVD with counsel at the District
      Attorney’s office and to have the statements transcribed for use
      at trial, circumstances substantially similar to Colson, this Court
      properly held that [Perez] suffered no prejudice by not also
      receiving a DVD of the interviews.

Trial Court Opinion, 1/17/2017, at 5–6.

      Based on our review, we discern no abuse of discretion. The trial court

correctly applied the holding in Robinson that “[t]he Commonwealth has no

duty to provide evidence in a form that the defendant demands for the


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convenience of the defense.” 122 A.3d at 373. Perez does not reference any

portion of the transcript to suggest there is favorable evidence or credibility

revelations that would be more apparent in the DVD than in the written

statement.    Therefore, because Perez was provided with the victim’s

statements, the DVD was made available for viewing, and Perez does not point

to anything in the transcript that would be more thoroughly disclosed in the

DVD, we conclude his discovery claim is unavailing.

      In his second issue, Perez argues the trial court abused its discretion by

imposing a manifestly excessive and unreasonable sentence of an aggregate

sentence of four to 12 years’ incarceration followed by six years’ probation.

      “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.

Super. 2007) (citation omitted). In order to reach the merits of such a claim,

this Court must determine:

      (1) whether appellant has filed a timely notice of appeal; (2)
      whether the issue was properly preserved at sentencing or in a
      motion to reconsider and modify sentence; (3) whether
      appellant's brief has a fatal defect; and (4) whether there is a
      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code.

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011)

(footnotes omitted).

      Here, Perez failed to challenge the discretionary aspects of his sentence

either during the sentencing hearing, or in a timely filed motion for


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reconsideration of sentence. “Absent such efforts, an objection to a

discretionary aspect of a sentence is waived.” Commonwealth v. Cartrette,

83 A.3d 1030, 1042 (Pa. Super. 2013) (en banc).            Accordingly, Perez is

entitled to no relief on his sentencing claim.

        In the third and fourth issues, Perez challenges the sufficiency of his

SVP designation. In the fifth issue, Perez challenges the lifetime registration

requirements imposed at Counts 4, 5 and 6 under SORNA. These issues are

interrelated, and we discuss them together.

        By way of background, on April 22, 2016, prior to sentencing, the

Commonwealth received the Sexual Offenders Assessment Board (SOAB)

report finding Perez to be an SVP, and praeciped for a hearing. However, at

the time of the May 19, 2016, sentencing hearing, trial counsel indicated he

had only become aware of the report a week before the hearing, that Perez

was contesting the report, and that he intended to confer with his office about

obtaining a defense expert. N.T., 5/19/2016, at 22. The trial court sentenced

Perez and scheduled a post-sentence SVP hearing.

        On the record at the sentencing hearing, the trial court stated that Perez

was “a lifetime registrant.” N.T., 5/17/2017, at 27. The sentencing order

reflects lifetime registration requirements were imposed on Counts 1, 2, 5 and

6, which were specified as “Tier 3” offenses. See Sentencing Order, May 17,

2017.     Thereafter, on August 19, 2016, the trial court conducted an SVP

hearing and determined Perez to be an SVP.


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       Under SORNA, sexual offenses are classified in a three-tiered system

composed of Tier I, Tier II, and Tier III sexual offenses. 42 Pa.C.S. § 9799.14.

Generally, a person convicted of a Tier I sexual offense must register for a

period of 15 years. 42 Pa.C.S. § 9799.15(a)(1). A person convicted of a Tier

II sexual offense must register for 25 years, and a conviction of a Tier III

sexual offense carries a mandatory lifetime registration requirement. 42

Pa.C.S. § 9799.15(a)(2) and (3).

       In this case, pursuant to Section 9799.14, Counts 1 and 2 (indecent

assault – 18 Pa.C.S. § 3126(a)(7)), are Tier III offenses. See 42 Pa.C.S. §

9799.14(d)(8). Count 3 (indecent assault – 18 Pa.C.S. § 3126(a)(8)) and

Count 4 (unlawful contact with a minor – 18 Pa.C.S. § 6318) are Tier II

offenses.    See 42 Pa.C.S. § 9799.14(c)(1.3), (5).     Count 5 (EWOC – 18

Pa.C.S. § 4304) is not an offense subject to registration. Count 6 (corruption

of minors – 18 Pa.C.S. § 6301(a)(1)(ii)) is a Tier I offense. See 42 Pa.C.S. §

9799.14(b)(8).

       While Perez presents a challenge to lifetime registration requirements

imposed at Counts 4,8 5 and 6 at sentencing, Perez was subsequently

classified as an SVP. As such, he is subject to lifetime registration

requirements for Tier I, II, and III sexual offense convictions. See 42 Pa.C.S.

§ 9799.15(a)(6) (“A sexually violent predator shall register for the life of an


____________________________________________


8Contrary to Perez’s claim, no registration requirement was imposed at Count
4.

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individual.”); 42 Pa.C.S. § 9799.15(d) (“An individual convicted of a Tier I

sexual offense, a Tier II sexual offense or a Tier III sexual offense who is

determined to be a sexually violent predator under section 9799.24 (relating

to assessments) shall register for the life of the individual.”). Therefore, Perez

has lifetime registration requirements at Counts 1 and 2 (Tier III), 3 and 4

(Tier II), and 6 (Tier I).

      However, while this case was pending on appeal, a panel of this Court

decided Commonwealth v. Butler, ___ A.3d ___, ___ [2017 Pa. Super.

LEXIS 873] (Pa. Super. 2017), which was issued on October 31, 2017.             In

Butler, the panel considered sua sponte the legality of sentencing issue

presented by the SVP designation mechanism, which increased Butler’s

minimum registration requirement.         The Butler majority found the SVP

provisions at 42 Pa.C.S. § 9799.24(e)(3) (“Assessments”) unconstitutional,

based upon our Supreme Court’s decision in Commonwealth v. Muniz, 164

A.3d 1189 (Pa. 2017) (concluding SORNA’s registration provisions constitute

punishment     and,   therefore,   that   retroactive   application   of   SORNA’s

registration provisions violates the ex post facto clauses of the federal and

Pennsylvania constitutions).

      Butler reasoned that since SORNA requirements are now deemed to be

punishment under Muniz, the present SVP statutory mechanism that allows

a trial court to designate a convicted defendant as an SVP based upon clear

and convincing evidence is constitutionally flawed.       In this regard, Butler


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found the United States Supreme Court decisions in Alleyne v. United

States, 133 S. Ct. 2151 (2013), and Apprendi v. New Jersey, 530 U.S. 466

(2000), require a factual finding that increases the length of registration

(punishment) to be made by the fact-finder beyond reasonable doubt.

      Butler concluded:

      In sum, we are constrained to hold that 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. Moreover, we are constrained
      to hold trial courts cannot designate convicted defendants SVPs
      (nor may they hold SVP hearings) until our General Assembly
      enacts a constitutional designation mechanism. Instead, trial
      courts must notify a defendant that he or she is required to
      register for 15 years if he or she is convicted of a Tier I sexual
      offense, 25 years if he or she is convicted of a Tier II sexual
      offense, or life if he or she is convicted of a Tier III sexual offense.

Butler, supra, ___ A.3d at ___ [2017 Pa. Super. LEXIS 873 at *13].

      In light of the Butler holding, we conclude we must vacate the judgment

of sentence with respect to the trial court’s SVP determination. Accordingly,

we need not address the third and fourth issues Perez raises on appeal, which

challenge the sufficiency of the evidence to support his SVP designation.

      This brings us to Perez’s fifth issue in which we consider, without regard

to Perez’s classification as an SVP, whether Perez’s lifetime registration

requirements were properly imposed under SORNA.

      Initially, we point out that Perez does not challenge the registration

requirements imposed at Counts 1 and 2, which, as discussed above, are Tier

III offenses that require lifetime registration.

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      With respect to Counts 5 and 6, the trial court concluded these offenses

were Tier III offenses that required lifetime registration by relying Section

9799.14(d)(16), which provides:

      The following shall be classified as Tier III sexual offenses: … Two
      or more convictions of offenses listed as Tier I or Tier II sexual
      offenses.

42 Pa.C.S. § 9799.14(d)(16).

      The trial court reasoned that Count 3, indecent assault, and Count 4,

unlawful contact with minor, are Tier II offenses, and Count 6, corruption of

minors, is a Tier I offense, and concluded “any combination of Counts 3, 4

and/or 6 would trigger the cumulative provision under subsection(d)(16).”

Trial Court Opinion, 1/17/2017, at 9.

      Perez, however, maintains the trial court’s conclusion is invalid in light

of the Pennsylvania Supreme Court’s recent decisions in Commonwealth v.

Lutz-Morrison, 143 A.3d 891 (Pa. August 15, 2016), and A.S. v.

Pennsylvania State Police, 143 A.3d 896 (Pa. August 15, 2016). In Lutz-

Morrison, the Supreme Court clarified that Section 9799.14(d)(16) “requires

an act, a conviction, and a subsequent act to trigger lifetime registration for

multiple offenses otherwise subject to a fifteen- or twenty-five-year period of

registration.” Lutz-Morrison, supra, 143 A.3d at 895 (emphasis supplied).

Accord A.S., supra, 143 A.3d at 908 (applying registration requirements of

Megan’s Law II). Perez’s argument is compelling.




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       Here, the trial court imposed the lifetime registration requirement on

Counts 5 and 6 based solely on the multiple Tier I and II offenses included in

the same information. Notably, the Commonwealth concedes Lutz-Morrison

and A.S. “held that 42 Pa.C.S. 9799.14(d)(16) embodied a recidivist

philosophy, such that multiple offenses presented in the same information do

not serve to trigger a lifetime registration” and, in this case, “it is therefore

necessary that the registration requirement imposed on count 5 be vacated

and the registration requirement imposed on count 6 be corrected to reflect a

registration period of fifteen years, 42 Pa.C.S.A. § 9799.15(a)(1)[.]”

Commonwealth’s Brief at 32–33.9

       We agree with Perez’s argument and the Commonwealth’s analysis.

With respect to Count 5, we find that EWOC, 18 Pa.C.S. § 4304(a), is not an

offense subject to registration under any of the provisions of 42 Pa.C.S. §

9799.14.      With respect to Count 6, we find that corruption of minors, 18

Pa.C.S. § 6301(a)(1)(ii), is a Tier I offense that is subject to a 15-year

registration requirement.

       Therefore, based on the foregoing, we vacate the judgment of sentence

as to the SVP designation, as well as the lifetime registration requirement at

Count 5, and the lifetime registration requirement at Count 6 is amended to



____________________________________________


9 The Commonwealth notes that Perez “will remain a lifetime registrant due
to his convictions of Tier III offenses at counts 1 and 2, where that registration
requirement was correctly imposed.” Commonwealth’s Brief at 33.

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the proper registration requirement of 15 years. We remand this case to the

trial court for the sole purpose of issuing the appropriate notice under 42

Pa.C.S. § 9799.23 as to Perez’s registration obligation at Count 6 for a period

of 15 years. See Butler, supra, __ A.3d at ___ [2017 Pa. Super. LEXIS 873

at *13].

      Judgment of sentence vacated as to SVP designation, as well as lifetime

registration requirement at Count 5, and lifetime registration requirement at

Count 6 is amended to the proper registration requirement of 15 years;

judgment of sentence affirmed in all other respects. Case remanded.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2017




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