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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                :
                             :
                             :
 MICHAEL RICHIE              :
                             :
                Appellant    :          No. 1781 EDA 2017
                             :

          Appeal from the Judgment of Sentence April 25, 2017
           In the Court of Common Pleas of Delaware County
          Criminal Division at No(s): CP-23-CR-0002691-2016

COMMONWEALTH OF PENNSYLVANIA :          IN THE SUPERIOR COURT OF
                             :               PENNSYLVANIA
                             :
           v.                :
                             :
                             :
 MICHAEL RICHIE              :
                             :
                Appellant    :          No. 2275 EDA 2017
                             :

               Appeal from the Order Entered June 5, 2017
            In the Court of Common Pleas of Delaware County
           Criminal Division at No(s): CP-23-CR-0002691-2016


BEFORE: OTT, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                           FILED APRIL 12, 2018

     Michael Richie appeals from both the judgment of sentence imposed

April 25, 2017 (Docket No. 1781 EDA 2017), and the Order entered June 5,

2017 (Docket No. 2275 EDA 2017), in the Delaware County Court of Common
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Pleas, following his jury conviction of two counts of indecent assault.1 On April

25, 2017, the trial court imposed a sentence of 18 to 36 months’

imprisonment, followed by two years’ probation. Thereafter, on June 5, 2017,

the trial court filed findings of fact and conclusions of law in support of its prior

determination that Richie met the requirements for classification as a sexually

violent predator (“SVP”) under Pennsylvania’s Sexual Offender Registration

and Notification Act (“SORNA”).2 Richie raises two issues on appeal: (1) the

Commonwealth’s attorney improperly referred to crimes for which Richie was

not charged in its closing argument in an effort to inflame the jury, and (2)

his classification as an SVP under SORNA is unconstitutional. For the reasons

below, at Docket No. 1781 EDA 2017, we affirm in part, reverse in part, and

remand for a determination of Richie’s registration requirements under

SORNA. At Docket No. 2275 EDA 2017, we quash the appeal as improper and

duplicative.

        The facts underlying Richie’s arrest and conviction are summarized by

the trial court as follows:

              In December of 2015, [the victim] returned to Chester,
        Pennsylvania from her present home in Indonesia to surprise her
        mother for Christmas. She arrived between 5:00 p.m. and 5:30
        p.m. on December 25, 2015, went to her mother’s house, ate
        dinner and then decided she wanted to spend time with her
        mother’s brother, [Richie]. [The victim] arrived at the home of
        Carolyn Thomas, where [Richie] was staying, at approximately
____________________________________________


1   18 Pa.C.S. §§ 3126(a)(1) and (a)(4).

2   See 42 Pa.C.S. §§ 9799.10-9799.42.

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     10:00 p.m. on December 25, 2015.               There, she drank
     approximately four (4) ounces of red wine, poured by [Richie],
     before she and [Richie] went three doors down to the home of a
     friend of [Richie]. From there, [the victim] and [Richie] decided
     to go to a local bar to purchase beer. They returned from the bar
     to the home of [Richie’s] friend, where [the victim] drank two (2)
     bottles of Yuengling beer. The beers had been given to [the
     victim] by [Richie], who had opened them in another room. While
     consuming the second beer, [the victim] began to feel as though
     she were drunk, which she testified to be very unusual for her
     after that amount of alcohol.

            [The victim] felt the need to return somewhere she felt
     “safe,” and so she left the friend’s home. She returned to Ms.
     Thomas’ home, where she proceeded to the bathroom to vomit.
     Ms. Thomas testified it was about 12:00 a.m. on December 26,
     2015 when [the victim] and [Richie] returned. [The victim] went
     into the bathroom a second time to vomit, shortly after the first
     time, and at that point Ms. Thomas intended to have [the victim]
     stay. Ms. Thomas gave [the victim] a nightgown to wear and had
     her lie on the couch; Ms. Thomas also gave her a blanket and then
     retired to the bedroom. [The victim] did not remember changing
     into the nightgown.

             When [the victim] woke up on the couch, in the early hours
     of December 26, she discovered [Richie’s] hands cupping her
     breasts, outside her clothing. She pushed [Richie] off of her,
     threatened to break his fingers, and then retreated to the
     bathroom.        At that point, [the victim] still felt unusual
     (“drugged”), but she changed into her clothes and left to go back
     to her mother’s house. When [the victim] arrived back at her
     mother’s home, she laid down in the recliner and fell back asleep,
     still feeling “drugged.”

           When [the victim] awoke, near noon, she went to get herself
     ready to go out with her mother. While preparing to take a
     shower, [the victim] realized her vaginal area was swollen. She
     got into the shower and called out for her mother. When [the
     victim’s] mother entered the bathroom, [the victim] told her what
     had happened and that she believed [Richie] has assaulted her.
     At the insistence of her mother, the two women went over to Ms.
     Thomas’ house to confront [Richie]. When they arrived, [Richie]
     answered the door and [the victim] struck him; she testified he
     denied doing anything but said he “would never drink again.”


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              After leaving Ms. Thomas’ house, [the victim] wanted to “do
       something normal,” so she and her mother tried to go see a
       movie, which was not showing when they arrived. Ultimately, [the
       victim] went to the police on December 29, 2015, after having
       spoken with some friends. When [the victim] arrived at the Upper
       Chichester police station, she spoke with an officer. Following that
       conversation, she gave a taped statement to a detective. The
       officers sent [the victim] to Riddle Memorial Hospital for medical
       attention, where she underwent a sexual assault examination and
       was given standard treatment for common sexually transmitted
       diseases.     [The victim] was unable to be given emergency
       contraceptives (“the morning after pill”) or a drug-facilitated
       sexual assault kit because too much time had elapsed from the
       assault to her seeking medical treatment.

Trial Court Opinion, 7/31/2017, 1-3 (record citations omitted).

       Richie was originally charged with two counts of rape, three counts of

aggravated indecent assault and three counts of indecent assault.3 However,

the Commonwealth proceeded to trial only on two counts of indecent assault.

See 18 Pa.C.S. §§ 3126(a)(1) (without consent) and (a)(4) (person

unconscious). Following a three-day trial, on October 27, 2016, a jury found

Richie guilty of both charges. That same day, the trial court entered an order

directing Richie undergo an assessment by the Pennsylvania Sexual Offenders

Assessment Board to determine whether he met the requirements for

classification as an SVP under SORNA. See Order, 10/27/2016.

       On    April   25,    2017,     the      trial   court   conducted   a   combined

sentencing/SORNA hearing. At the conclusion of the proceeding, the court
____________________________________________


3See 18 Pa.C.S. §§ 3121(a)(3) and (a)(4); 3125 (a)(1), (a)(4), and (a)(5);
and 3126(a)(1), (a)(4), and (a)(5).




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sentenced Richie to a term of 18 to 36 months’ incarceration, followed by two

years’ probation,4 and determined Richie met the criteria for classification as

an   SVP,    therefore     subjecting    him     to   SORNA’s   lifetime   registration

requirements.      See 42 Pa.C.S. § 9799.15(d).          Richie filed a timely pro se

appeal on May 25, 2017, which is docketed at No. 1781 EDA 2017.

       Thereafter, on June 5, 2017, the trial court filed findings of fact and

conclusions of law in support of its prior determination that Richie should be

classified as an SVP.      On June 30, 2017, Richie’s counsel filed a notice of

appeal from the June 5 order, which is docketed at No. 2275 EDA 2017.5

       Preliminarily, we must address the propriety of the two appeals before

us. It is axiomatic that “a direct appeal in a criminal case can only lie from

the judgment of sentence.”         Commonwealth v. Lawrence, 99 A.3d 116,

117 n. 1 (Pa. Super. 2014), appeal denied, 114 A.3d 416 (Pa. 2015). Here,

on May 25, 2017, Richie filed a timely pro se notice of appeal from the April

25, 2017, judgment of sentence. However, counsel later filed a second notice

of appeal on June 30, 2017, purportedly from the court’s “Order entered in

____________________________________________


4 The sentence was imposed on the Subsection (a)(4) conviction for
committing indecent assault on an unconscious person. The conviction under
Subsection (a)(1) merged for sentencing purposes.

5 On June 12, 2017, following the filing of the first notice of appeal, the trial
court ordered Richie to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). The docket indicates the order was
served on June 20, 2017. Thereafter, on June 30, 2017, Richie complied with
the court’s order and filed a concise statement.


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this matter on the 5th day of June 2017[.]” Notice of Appeal, 6/30/2017. This

second appeal was improper. The “order” from which counsel appealed is not

an order at all, but rather, more appropriately designated as an opinion. See

Findings of Fact and Conclusions of Law in Support of Order of April 25, 2017

Finding Defendant a Sexually Violent Predator, 6/5/2017. Therefore, the only

appealable docket entry in this case is the April 25, 2017, judgment of

sentence, which Richie timely appealed. Consequently, because we conclude

the appeal filed at Docket No. 2275 EDA 2014 was both improper and

duplicative, we quash that appeal.6

       The first claim on appeal asserts prosecutorial misconduct during closing

arguments. Specifically, Richie argues the trial court erred when it overruled

his objection and permitted the Commonwealth’s attorney to “strongly

allude[] in closing argument that [] Richie had committed the much more

serious crimes of Rape, Involuntary Deviate Sexual Intercourse and

Aggravated Indecent Assault against the victim but that DNA evidence was

not at hand to prove those offenses.”            Richie’s Brief at 11.   Because the

comments were designed to inflame the jury, Richie insists the court

committed reversible error.
____________________________________________


6 We note that on October 19, 2017, Richie filed an application in this Court
seeking to consolidate the two appeals. This Court denied the application on
November 6, 2017, but directed that the appeals be listed consecutively on a
panel, and that the parties file only one brief. See Order, 11/6/2017. We
note Richie’s brief does not mention the dual filing, or attempt to explain the
propriety of the second notice of appeal.


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     When considering a claim of prosecutorial misconduct during closing

arguments, our review is “limited to whether the trial court abused its

discretion.” Commowealth v. Bedford, 50 A.3d 707, 715 (2012) (quotation

omitted), appeal denied, 57 A.3d 65 (Pa. 2012).

     Our review of a prosecutor’s comment and an allegation of
     prosecutorial misconduct requires us to evaluate whether a
     defendant received a fair trial, not a perfect trial.
     Commonwealth v. Rios, 554 Pa. 419, 721 A.2d 1049 (1998).
     Thus, it is well settled that statements made by the prosecutor to
     the jury during closing argument will not form the basis for
     granting a new trial “unless the unavoidable effect of such
     comments would be to prejudice the jury, forming in their minds
     fixed bias and hostility toward the defendant so they could not
     weigh the evidence objectively and render a true verdict.”
     Commonwealth v. Fletcher, 580 Pa. 403, 434–35, 861 A.2d
     898, 916 (2004) (quotation and quotation marks omitted). The
     appellate courts have recognized that not every unwise remark by
     an attorney amounts to misconduct or warrants the grant of a new
     trial. Commonwealth v. Faulkner, 528 Pa. 57, 595 A.2d 28
     (1991). Additionally, like the defense, the prosecution is accorded
     reasonable latitude, may employ oratorical flair in arguing its
     version of the case to the jury, and may advance arguments
     supported by the evidence or use inferences that can reasonably
     be derived therefrom. Commonwealth v. Carson, 590 Pa. 501,
     913 A.2d 220 (2006); Commonwealth v. Holley, 945 A.2d 241
     (Pa. Super.2008). Moreover, the prosecutor is permitted to fairly
     respond to points made in the defense’s closing, and therefore, a
     proper examination of a prosecutor’s comments in closing requires
     review of the arguments advanced by the defense in summation.
     Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d 501 (2005).

Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa. Super. 2016), appeal

denied, 145 A.3d 724 (Pa. 2016).

     Here, Richie objects to the following closing comments by the

prosecuting attorney:



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           [Prosecutor:] … Ladies and gentlemen of the jury, this is
     not a DNA case. And the reason for that is the [Sexual Assault
     Nurse Examiner] had mentioned, you are not going to get DNA off
     of the fact that [the victim] awoke with Uncle Richie grabbing her
     breasts over her clothing. Now just so you know a little bit of
     background there are unfortunately a lot of different way[s] to
     commit sexual violence. Now the charge of rape which is not
     pursued here –

          [Defense counsel:] Objection. I am going to object to her
     mentioning the word rape in her closing.

           THE COURT:     Well she is saying it is not charge[d], so
     overruled.

           [Prosecutor:] The charge of rape legally means that in an
     instant when a victim is unconscious is that the penis penetrated
     the vagina of an unconscious victim, that would be rape. There is
     another crime, it is called involuntary deviate sexual intercourse.
     Again not applicable in this case. The Commonwealth would have
     to prove that a foreign object was inserted into someone’s vagina
     when they were unconscious. Now there is another charge called
     aggravated indecent assault and that is when the Commonwealth
     has to prove that there was digital penetration, in other words a
     finger went inside of a vagina. In that instance as you can
     imagine, DNA would be relevant.            DNA would help the
     Commonwealth prove a case in this instance. For example if
     semen was found, we could then move forward on a rape charge.
     However, there was no DNA. And the Commonwealth recognizes
     that we cannot meet that high burden, burden beyond a
     reasonable doubt without the DNA for the charge of rape.
     However, in this case we are pursuing indecent assault. …

N.T., 10/26/2016, at 136-138.

     Richie contends the trial court erred when it overruled his objection to

the prosecutor’s closing argument because the prosecutor’s motive in

referencing crimes that were not pursued at trial was to leave the jury with

the “impression that [Richie] was escaping accountability for more heinous

conduct than that with which he was accused of at trial,” and, therefore,


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convince the jury to convict him of indecent assault “to make up for the fact

that he was getting away with rape.” Richie’s Brief at 12, 13. He maintains

the Commonwealth’s comments were “obviously designed to inflame the jury

and create an atmosphere of hostility against [him] during their deliberations.”

Id. at 13. Accordingly, Richie contends he is entitled to a new trial.

       Here, the trial court addressed Richie’s argument as follows:

       [T]he Commonwealth utilized some latitude, without exaggerating
       the evidence or using inflammatory language as to incite the
       passions of the jurors, to educate the jurors about the lack of DNA
       evidence in the instant case. The Commonwealth listed the three
       named charges, specifically telling the jury that those were not
       applicable to the case, and then explained why they were being
       illustrated. After the Commonwealth listed each charge, the
       Assistant District Attorney explained what constitutes that charge,
       and summarized why those crimes would have DNA evidence
       versus why the charges which had been lodged against [Richie]
       would not produce DNA evidence. The closing remarks were
       within the standards allowing some leniency on counsel’s closing
       arguments and in direct rebuttal to defense counsel’s closing
       argument about the lack of DNA in this case.                    The
       Commonwealth’s illustration was proper, despite containing
       reference to crimes for which [Richie] was not charged.

Trial Court Opinion, 7/31/2017, at 7 (record citations omitted).7



____________________________________________


7 We note the trial court found Richie waived his objection to the prosecutor’s
reference to the crimes of involuntary deviate sexual intercourse and
aggravated indecent assault because he only lodged an objection after the
prosecutor mentioned the word “rape,” and did not object again when the
prosecutor referred to the other crimes. Trial Court Opinion, 7/31/2017, at 7.
Because we conclude, infra, the prosecutor’s comments were a fair response
to the defense closing, we need not determine whether Richie was required to
object to each separate reference.


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      We find no basis to disagree.    As noted above, a defendant is only

entitled to a new trial based upon a prosecutor’s comments during closing

argument when “the unavoidable effect of such comments would be to

prejudice the jury, forming in their minds fixed bias and hostility toward the

defendant so they could not weigh the evidence objectively and render a true

verdict.”   Jaynes, supra, 135 A.3d at 615 (quotation omitted).             Here,

although the Commonwealth’s attorney did refer to crimes for which Richie

was not on trial, she did not suggest that he should have been charged with,

or actually had committed, those crimes.       Rather, she referred to those

offenses in an attempt to explain the lack of DNA evidence in the case.

Considered in context, her comments were a fair response to defense

counsel’s closing argument. See Commonwealth v. Miller, 172 A.3d 632,

644 (Pa. Super. 2017) (“It is well settled that the prosecutor may fairly

respond to points made in the defense closing.”) (quotation omitted).

      During his closing statement, defense counsel argued:

      Now the Commonwealth is going to get up here in a little bit and
      say something to the effect of oh we don’t need DNA and
      pandering on and on. But I can tell you if they had it they would
      be waving it in your face. Since they don’t that is my job. All the
      DNA, no blood, no seminal fluid, no speck of DNA was found on
      [the victim]. Excuse me let me rephrase that. None of Mr.
      Richie’s DNA, blood, seminal fluid, none of that was found on [the
      victim]. I would submit to you that is pretty conclusive evidence.

                                   ****

      Now I have spoken about this stipulated fact [that none of Richie’s
      DNA was detected], and because the defense and the
      Commonwealth have agreed on this fact, you have to take it as


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       true. Or you can disregard it, but it is going to tell you in writing
       that there was no DNA found on the panties, no DNA found
       anywhere. The other aspect here is that the bra was tested. I
       am assuming – the Commonwealth didn’t bring this out so I have
       to assume at this point that is the bra that she was wearing the
       night of the incident. No DNA. It would be there. If [the victim’s]
       version of events that he grabbed with both hands, there would
       be DNA right there. But we don’t have that. The medical report
       states that no DNA was found, none of [] Richie’s DNA was found.

N.T., 10/26/2016, at 131, 134.

       In an attempt to rebut defense counsel’s argument, the prosecutor

explained that DNA evidence would be very relevant in proving certain sexual

offenses, such as        rape, involuntary deviate    sexual   intercourse, and

aggravated indecent assault. See id. at 136-137. However, she emphasized

that Richie was not being tried for those crimes. Moreover, the prosecutor

argued that, based upon the victim’s account of the incident, 8 the offense for

which Richie was on trial – indecent assault – could be proven beyond a

reasonable doubt absent DNA evidence. See id. Accordingly, we conclude

the trial court did not err in overruling Richie’s objection to the prosecutor’s

closing arguments.




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8The prosecutor stated Richie was accused of grabbing the victim’s breasts,
over her bra, while she was sleeping. See N.T., 10/26/2016, at 139.




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       Next, Richie contends his classification as an SVP under SORNA, and

concomitant lifetime registration requirement, constitutes an illegal sentence.

See Richie’s Brief at 14. We agree.9

       Our ruling is based upon two recent appellate court decisions that were

filed while Richie’s case was pending on direct appeal.10 First, on July 17,

2017, the Pennsylvania Supreme Court held in Commonwealth v. Muniz,

164 A.3d 1189 (Pa. 2017), that SORNA’s registration provisions constitute

punishment, and, therefore, the retroactive application of those provisions

violates the ex post facto clauses of the federal and Pennsylvania

constitutions.    Thereafter, on October 31, 2017, a panel of this Court, in

Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017), recognized

that “Muniz was a sea change in the longstanding law of this Commonwealth

as it determined that the registration requirements under SORNA are not civil

in nature but a criminal punishment.”              Id. at 1215.   As such, the panel

concluded the statutory mechanism for designating a defendant as an SVP set

forth in 42 Pa.C.S. § 9799.24(e)(3), which permits a trial court to make the

determination based upon clear and convincing evidence, was “constitutionally
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9We note the Commonwealth concedes Richie is entitled to relief on this claim.
See Commonwealth’s Brief at 19-21.

10 Although this issue was not raised before the trial court, a challenge to the
legality of sentencing may be raised for the first time on appeal, or by an
appellate court sua sponte. See Commonwealth v. Batts, 163 A.3d 410,
434 (Pa. 2017).



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flawed” pursuant to the United States Supreme Court’s decisions in Alleyne

v. United States, 570 U.S. 99 (2013),11 and Apprendi v. New Jersey, 530

U.S. 466 (2000).12 Accordingly, the Butler panel held: “[T]rial courts cannot

designate convicted defendants SVPs (nor may they hold SVP hearings) until

our General Assembly enacts a constitutional designation mechanism.”

Butler, supra, 173 A.3d at 1218. Therefore, the panel vacated the order

designating the defendant as an SVP, and remanded the case to the trial court

to determine his proper registration period pursuant to 42 Pa.C.S. §§ 9799.14

and 9799.15. See id.

       The decision in Butler compels the same result here. Accordingly, we

vacate the judgment of sentence, in part, with respect to Richie’s designation

as an SVP and his lifetime registration requirement under SORNA.

Furthermore, we remand this case to the trial court to determine Richie’s

proper registration period, and provide notice to Richie thereof as required by

42 Pa.C.S. § 9799.23. In all other respects, however, we affirm the judgment

of sentence.

       At Docket No. 2275 EDA 2017, appeal quashed.



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11 See Alleyne, supra (any fact that increases the mandatory minimum
sentence of a crime is an element that must be submitted to a jury and proved
beyond a reasonable doubt).

12 See Apprendi, supra (any fact, other than a prior conviction, that
increases the penalty of a crime beyond the statutory maximum must be
submitted to a jury and proved beyond a reasonable doubt holding

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     At Docket No. 1781 EDA 2017, Judgment of sentence affirmed in part,

and vacated in part.   Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/18




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