J-S53042-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                             Appellee

                       v.

JOHN EDWARD RURA, III,

                             Appellant                     No. 711 WDA 2014


               Appeal from the Judgment of Sentence March 21, 2014
                  in the Court of Common Pleas of Fayette County
                 Criminal Division at No.: CP-26-CR-0001662-2012


BEFORE: DONOHUE, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED SEPTEMBER 17, 2014

        Appellant, John Edward Rura, III, appeals from the judgment of

sentence entered on March 21, 2014, following Appellant’s October 10, 2013

open guilty plea to one count of unlawful contact with a minor1 and one

count     of    indecent    assault.2     On   appeal,   Appellant   challenges   the

constitutionality of Pennsylvania’s Sex Offender Registration and Notification

Act [SORNA].        See 42 Pa.C.S.A. §§ 9799.14, 9799.15.            For the reasons

discussed below, we affirm.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 6318(a)(1).
2
    18 Pa.C.S.A. § 3126(a)(8).
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      As noted above, on October 10, 2013, Appellant entered an open

guilty plea to the aforementioned charges.         The charges arose from an

incident that took place on August 12, 2012, when the then nineteen-year-

old Appellant had sexual contact with a fourteen-year-old girl.        (See N.T.

Guilty Plea Hearing, 10/10/13, at 8-10).

      On March 21, 2014, the sentencing court sentenced Appellant to a

term of two years of probation. (See N.T. Sentencing, 3/21/14, at 3). The

sentencing court found that Appellant was not a sexually violent predator

[SVP].    (See id. at 2-3).      However, the sentencing court found that

Appellant was subject to lifetime registration under Section 9799.23 of

SORNA. (See id. at 4).

      On March 27, 2014, Appellant filed a timely motion for reconsideration

of sentence, which the sentencing court denied on May 8, 2014. On May 2,

2014, Appellant filed a timely notice of appeal and a concise statement of

errors complained of on appeal. See Pa.R.A.P. 1925(b). On June 18, 2014,

the trial court issued an opinion. See Pa.R.A.P. 1925(a).

      On appeal, Appellant raises the following questions for our review:

      Issue No. 1:       Is it unconstitutional to require [an] Appellant
                         to register for a lifetime for a crime that carries
                         a maximum penalty in the instant case of five
                         years?

      Issue No. 2:       Is the Adam Walsh Statute unconstitutional in
                         requiring the an [sic] Appellant to register for a
                         lifetime for said crime?

(Appellant’s Brief, at 7).

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      Appellant’s two issues are interrelated; therefore, we will address

them together. Appellant argues that SORNA’s registration requirements are

“manifestly excessive” and “an unusual punishment” in violation of both the

Pennsylvania and United States Constitutions.      (Id. at 9).   We note that

Appellant’s argument that SORNA is unconstitutional consists of less than

four full pages, does not reference the constitutional provisions upon which

he bases his argument, and does not contain any citation to the applicable

statutory section of SORNA.        (See id. at 10-13).       It is Appellant’s

responsibility to develop arguments in his brief; where he has not done so

we will find the claim waived.    See Commonwealth v. Gibbs, 981 A.2d

274, 284 (Pa. Super. 2009), appeal denied, 3 A.3d 670 (Pa. 2010). Thus,

we find that, based upon his failure to develop his constitutional argument

sufficiently, Appellant has waived his claim on appeal.

      Moreover, even if Appellant had not waived his claim, it is devoid of

merit.   Appellant’s issue presents a question of law, thus our standard of

review is de novo and our scope of review is plenary. See Commonwealth

v. Perez, --- A.3d ---, 2014 WL 3339161, at *1 (Pa. Super. Filed July 9,

2014). Further, “[a] statute is presumed to be constitutional and will not be

declared unconstitutional unless it clearly, palpably, and plainly violates the

constitution.   Thus, the party challenging the constitutionality of a statute

has a heavy burden of persuasion.” Commonwealth v. Howe, 842 A.2d

436, 441 (Pa. Super. 2004) (citations omitted).


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        Although   Appellant’s    constitutional        claim    is    underdeveloped,    he

appears to contend that the lifetime registration requirements of SORNA are

punitive and constitute “unusual punishment” presumably in violation of the

Eighth Amendment to the United States Constitution, and Article 1, Section

13 of the Pennsylvania Constitution. (Appellant’s Brief, at 12). We note that

Section 13 of the Pennsylvania Constitution does not provide any greater

protection against cruel and unusual punishment than does the Eighth

Amendment to the United States Constitution.                     See Commonwealth v.

Baker, 24 A.3d 1006, 1026, n.20 (Pa. Super. 2011), affirmed, 78 A.3d 1044

(Pa. 2013).

        In Perez, supra, a panel of this Court addressed the issue of whether

SORNA was “punitive” and therefore violated the ex post facto clauses of the

federal and state constitutions. Perez, supra at *1. We held that SORNA

was     not   sufficiently   punitive     to     overcome       the    General   Assembly’s

classification of it as a civil regulatory scheme that “shall not be construed as

punitive.” Id. at *10; see also 42 Pa.C.S.A. § 9799.11(b)(2).

        Further, in an even more recent decision, a different panel of this

Court    addressed     the    identical        issues   raised    by     Appellant.      See

Commonwealth v. McDonough, --- A.3d ---, 2014 WL 3563346, at *3

(Pa. Super. Filed July 21, 2014).                   We note that the appellant in

McDonough, like Appellant here, was not classified as an SVP. See id. In

upholding the registration provisions of SORNA, we stated:


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     However, even assuming that [McDonough’s] 15–year
     registration requirement is excessive in comparison to his actual
     sentence of one to two years’ imprisonment, we cannot ignore
     our Supreme Court’s pronouncement that:

                 Because we do not view the registration
          requirements as punitive but, rather, remedial, we
          do not perceive mandating compliance by
          offenders who have served their maximum
          term to be improper. Furthermore, the fact that
          an offender may be held until such information is
          furnished is no different from confining someone in a
          civil contempt proceeding. While any imprisonment,
          of course, has punitive and deterrent effects, it must
          be viewed as remedial if release is conditioned upon
          one’s willingness to comply with a particular
          mandate.

     Commonwealth v. Gaffney, 557 Pa. 327, 733 A.2d 616, 622
     (Pa. 1999) (emphasis added) (citations omitted). Similarly, in
     [Commonwealth v.] Benner, [853 A.2d 1068 (Pa. Super.
     2004)] this Court also recognized that:

                The registration provisions of Megan’s Law do
          not constitute criminal punishment. The registration
          requirement is properly characterized as a collateral
          consequence of the defendant’s plea, as it cannot be
          considered to have a definite, immediate and largely
          automatic effect on a defendant’s punishment.

                                  *      *   *

                 Because the registration requirements under
          Megan’s Law impose only collateral consequences of
          the actual sentence, their application is not limited
          by the factors that control the imposition of
          sentence. Thus, while a defendant may be subject
          to conviction only under statutes in effect on the
          date of his acts, and sentence configuration under
          the guidelines in effect on that same date, the
          application of the registration requirements under
          Megan’s Law is not so limited. This is so due to the
          collateral nature of the registration requirement.


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      Benner, 853 A.2d at 1070–71.

             While Gaffney and Benner were decided prior to the
      effective date of SORNA, the same principles behind the
      registration requirements for sexual offenders under Megan’s
      Law apply to those subject to SORNA. Namely, to effectuate,
      through remedial legislation, the non-punitive goal of public
      safety. Gaffney, 733 A.2d at 619; see 42 Pa.C.S. § 9791(a)
      (legislative findings and declaration of policy behind registration
      of sexual offenders). In fact, one of the main purposes behind
      SORNA is to fortify the registration provisions applicable to such
      offenders. See 42 Pa .C.S. § 9799.10 (purpose of registration of
      sexual offenders under SORNA); see also H.R. 75, 195th Gen.
      Assemb. Reg. Sess. (Pa. 2012). With this purpose in mind, we
      cannot find that the law is unconstitutional as it applies to [the
      appellant].     He has offered neither competent nor credible
      evidence to undermine the legislative findings behind SORNA’s
      registration provisions. Accordingly, we find no error. Benner,
      supra.

McDonough, supra at **3-4 (emphasis in original). These well-reasoned

decisions are binding on this Court.        See Commonwealth v. Pepe, 897

A.2d 463, 465 (Pa. Super. 2006), appeal denied 946 A.2d 686 (Pa. 2008),

cert. denied, 555 U.S. 881 (2008) (“It is beyond the power of a Superior

Court panel to overrule a prior decision of the Superior Court, except in

circumstances where intervening authority by our Supreme Court calls into

question a previous decision of this Court.”) (citations omitted).          Thus,

Appellant’s   claim   that    the   registration   requirements   of   SORNA   are

unconstitutional must fail.

      Judgment of sentence affirmed.

      Olson, J., joins the Memorandum.

      Donohue, J., concurs in the result.


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J-S53042-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/17/2014




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