                    [J-103A-2019 and J-103B-2019] [MO: Dougherty, J.]
                       IN THE SUPREME COURT OF PENNSYLVANIA
                                   MIDDLE DISTRICT


 COMMONWEALTH OF PENNSYLVANIA,                   :   No. 35 MAP 2018
                                                 :
                        Appellant                :   Appeal from the Order of the
                                                 :   Montgomery County Court of
                                                 :   Common Pleas, Criminal Division, at
               v.                                :   No. CP-46-CR-1445-1997. dated
                                                 :   June 21, 2018
                                                 :
 CLAUDE LACOMBE,                                 :   ARGUED: November 20, 2019
                                                 :
                        Appellee                 :

 COMMONWEALTH OF PENNSYLVANIA,                   :   No. 64 MAP 2018
                                                 :
                        Appellant                :   Appeal from the Order of
                                                 :   Montgomery County Court of
                                                 :   Common Pleas, Criminal Division, at
               v.                                :   No. CP-46-CR-0004935-2013 dated
                                                 :   October 26, 2018.
                                                 :
 MICHAEL WITMAYER,                               :   ARGUED: November 20, 2019
                                                 :
                        Appellee                 :


                                    CONCURRING OPINION


JUSTICE MUNDY                                                  DECIDED: July 21, 2020
      I join the majority’s holding that “Subchapter I [of the Sex Offender Registration

and Notification Act (SORNA), 42 Pa.C.S. §§ 9799.51-9799.75] is nonpunitive and does

not violate the constitutional prohibition against ex post facto laws.” Majority Opinion at

1-2. However, I do not agree that the online registration requirements resemble colonial

era public shaming punishments under the second factor of the test set forth in Kennedy

v. Mendoza-Martinez, 372 U.S. 144 (1963). I recognize that in Commonwealth v. Muniz,
164 A.3d 1189 (Pa. 2017) (OAJC), this Court concluded that those online registration

requirements resemble colonial era public shaming punishments due to the widespread

accessibility of the internet, thus distinguishing the United States Supreme Court’s

rationale in Smith v. Doe, 538 U.S. 84 (2003). Accordingly, I do not fault the majority for

applying Muniz’s rationale in this case. In my view, however, the widespread availability

of the internet was never a compelling basis to distinguish Smith.1 The purpose of the

online registry is to provide the public with information necessary for its safety. It appears

illogical to therefore conclude that accessibility to that information weighs in favor of

finding the statute punitive. The internet aspect of sex offender registries is also a

federally mandated feature. See 34 U.S.C. § 20920 (“Except as provided in this section,

each jurisdiction shall make available on the Internet, in a manner that is readily

accessible to all jurisdictions and to the public, all information about each sex offender in

the registry.”). This requirement was deemed essential with the understanding that such

information would be widely accessible to the public.          Because I would find that

Subchapter I’s requirements do not resemble public shaming punishments, I would weigh

this factor against finding the statute punitive, despite the fact that the statute’s

requirements nonetheless resemble probation. Accordingly, I respectfully concur.




1 Rather, I am persuaded by Chief Justice Saylor’s dissent in Muniz explaining that
“focusing on that narrow metric diminishes the central reasoning that the Supreme Court
employed [in Smith] in finding that worldwide internet access to offender registry
information did not constitute punishment, as well as overlooks internet accessibility
available at that time in other places, such as public libraries and workplaces.” Muniz,
164 A.3d at 1233-34 (Saylor, C.J. dissenting).


                 [J-103A-2019 and J-103B-2019] [MO: Dougherty, J.] - 2
