J-S02043-19

                                 2019 PA Super 151

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                     Appellee              :
                                           :
                v.                         :
                                           :
 RASHEED ADAMS-SMITH                       :
                                           :
                     Appellant             :         No. 4080 EDA 2017

              Appeal from the PCRA Order November 20, 2017
            In the Court of Common Pleas of Montgomery County
            Criminal Division at No(s): CP-46-CR-0003263-2013


BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

OPINION BY GANTMAN, P.J.E.:                               FILED MAY 07, 2019

      Appellant, Rasheed Adams-Smith, appeals from the order entered in the

Montgomery County Court of Common Pleas, which denied his first petition

brought pursuant to the Post-Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A.

§§ 9541-9546.        We affirm in part, vacate in part, and remand with

instructions.

      The trial court and this Court set forth the relevant facts and previous

procedural history of this case as follows.

         On April [4], 2014, following trial before the [trial court] and
         a jury, [Appellant]–then represented by William E. Moore,
         Esquire–was convicted of rape of a child under the age of
         thirteen, involuntary deviate sexual intercourse [(“IDSI”)]
         with a child under the age of thirteen, indecent assault of a
         child under the age of thirteen, and indecent exposure.

         At trial, the Commonwealth presented evidence that
         [Appellant]−a close friend of the victim’s family−began
         improperly touching the victim (A.G.) at a time when A.G.
         was approximately five (5) years old and [Appellant] was a
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       teenager.5 This improper contact continued over a period
       of years, beginning with repeated touching by [Appellant] of
       A.G.’s bare buttocks and ultimately escalating to, inter alia,
       [Appellant] exposing himself and masturbating to
       ejaculation in front of A.G. and repeatedly penetrating A.G.’s
       anus with [Appellant’s] penis. A.G. testified that these anal
       penetrations occurred “too many times to count.”

          5 At the time of trial, A.G. was ten (10) years old and
          [Appellant] was twenty (20).

       [Appellant] was charged with and convicted of crimes he
       committed after his eighteenth birthday, specifically the
       period between July 2011 and September 2012. Evidence
       of [Appellant’s] earlier improper conduct with [Victim] was
       admitted─upon the Commonwealth’s motion─solely to
       provide the jurors with the complete background and history
       of the case.

       On August 1, 2014, [Appellant] appeared before the [trial
       court] for a hearing to determine whether [Appellant] would
       be classified as a sexually violent predator [(“SVP”)].
       Following hearing, the [trial court] accepted the
       recommendation of the Pennsylvania Sexual Offenders
       Assessment Board and determined that [Appellant] was, in
       fact, [an SVP].

       The case then proceeded immediately to sentencing.
       Following hearing, the [trial court] imposed a standard
       range sentence of not less than ten (10) nor more than
       twenty (20) years[’] imprisonment on [Appellant’s]
       conviction for rape of a child. The [trial court] imposed a
       consecutive standard range sentence of not less than ten
       (10) and not more than twenty (20) years[’] imprisonment
       on [Appellant’s] conviction for [IDSI] with a child. The [trial
       court] further imposed a concurrent sentence of not less
       than one (1) nor more than two (2) years[’] imprisonment
       on [Appellant’s] conviction for indecent assault, and a
       sentence of two (2) years[’] probation on his conviction for
       indecent exposure.

       [Appellant] thus received an aggregate sentence of not less
       than twenty (20) nor more than forty (40) years[’]


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          imprisonment, with the [trial court] explaining the reasons
          for the sentences imposed at some length on the record.

Commonwealth v. Adams-Smith, No. 85 EDA 2015, 2015 WL 7571762,

unpublished memorandum at 2-3 (Pa.Super. filed November 24, 2015)

(quoting Trial Court Opinion, filed March 12, 2015, at 1-2) (internal citations

to record and some footnotes omitted). Additionally at sentencing, the court

notified Appellant of his requirement to register and report for life as a Tier III

sexual offender and SVP under the Sexual Offender Registration and

Notification Act (“SORNA”).      Appellant timely filed a notice of appeal on

January 5, 2015. This Court affirmed the judgment of sentence on November

24, 2015. See id. Appellant did not file a petition for allowance of appeal

with our Supreme Court, so the judgment of sentence became final on or

about December 24, 2015.

        Appellant timely filed pro se his first PCRA petition on November 18,

2016.

          [The PCRA] court granted [Appellant’s] request for court-
          appointed PCRA counsel by order dated May 1, 2017, and
          filed of record on May 2, 2017, after an evidentiary hearing
          regarding [Appellant’s] indigency. Court-appointed PCRA
          counsel filed a “Petition for Permission to Withdraw as
          Counsel” on July 7, 2017, to which he attached a “no-merit”
          letter [pursuant to Commonwealth v. Turner, 518 Pa.
          491, 544 A.2d 927 (1988) and Commonwealth v. Finley,
          550 A.2d 213 (Pa.Super. 1988) (en banc)] dated July 5,
          2017. [Appellant] responded by filing a pro se document
          entitled “Petitioner’s Response to Finley Letter” on July 20,
          2017.

          On October 23, 2017, [the PCRA] court filed of record its
          “Notice of Intention to Dismiss,” which also granted court-

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        appointed counsel’s request for permission to withdraw.
        That notice was based upon [Appellant’s] pro se PCRA
        petition, court-appointed PCRA counsel’s “no-merit” letter,
        [Appellant’s] pro se response thereto, and [the PCRA]
        court’s independent review of the record and legal research.
        On November 13, 2017, [Appellant] acting pro se filed
        “Petitioner’s Response to Notice of Intent to Dismiss.”
        Review and consideration of [Appellant’s] response failed to
        persuade [the PCRA] court that [Appellant] was entitled to
        a hearing on his PCRA petition or entitled to any form of
        PCRA relief. Accordingly, [the PCRA] court by order entered
        November 22, 2017, dismissed [Appellant’s] “Petition for
        Post-Conviction Relief (PCRA)” filed November 18, 2016,
        without [a] hearing.

        [Appellant] filed a notice of appeal on December 18, 2017.
        [The PCRA] court directed [Appellant] to file a concise
        statement of errors complained of on appeal by order dated
        and entered [December 21, 2017]. [Appellant] complied by
        filing his concise statement on January 5, 2018.

(PCRA Court Opinion, filed February 21, 2018, at 2).

     Appellant raises the following issues for our review:

        1. WHETHER THE PCRA COURT ERRED AS A MATTER OF
        LAW, WHEN IT DISMISSED THE PCRA PETITION WITHOUT
        A HEARING[?]

        2. WHETHER APPELLANT IS ENTITLED TO A NEW TRIAL OR
        DISMISSAL OF THE CHARGES WHERE TRIAL COUNSEL WAS
        INEFFECTIVE FOR FAILING TO PRESENT ANY COUNTER
        ARGUMENTS PRIOR TO OR DURING, OR FAILING TO
        OBJECT TO THE COMMONWEALTH’S INTRODUCTION AT
        TRIAL OF PRIOR BAD ACTS[?]

        3. WHETHER APPELLANT IS ENTITLED TO A NEW TRIAL OR
        DISMISSAL OF THE CHARGES WHERE TRIAL COUNSEL WAS
        INEFFECTIVE FOR FAILING TO PURSUE [A] PRETRIAL
        INTERVIEW TO EXPLORE TAINT OF MINOR VICTIM IN
        ACCORDANCE WITH 42 PA.C.S.A. § 5985.1 & PA.R.E.
        601[?]

        4. WHETHER APPELLANT IS ENTITLED TO A NEW TRIAL OR

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         DISMISSAL OF CHARGES WHERE, TRIAL COUNSEL WAS
         INEFFECTIVE IN FAILING TO CONDUCT A PROPER CROSS-
         EXAMINATION OF COMMONWEALTH WITNESS DR.
         SCRIBANO & MOVE TO STRIKE HIS TESTIMONY AS NON-
         RELEVANT PURSUANT TO [PENNSYLVANIA RULES OF
         EVIDENCE?]

         5. APPELLANT IS ENTITLED TO A NEW TRIAL OR DISMISSAL
         OF THE CHARGES DUE TO THE CUMULATIVE NATURE OF
         THE ERRORS IN THIS CASE[?]

(Appellant’s Brief at 2).

      Preliminarily, we observe that appellate briefs must conform in all

material respects to the briefing requirements set forth in the Pennsylvania

Rules of Appellate Procedure. Pa.R.A.P. 2101. See also Pa.R.A.P. 2114-2119

(addressing specific requirements of each subsection of brief on appeal).

Regarding the argument section of an appellate brief, Rule 2119(a) provides:

         Rule 2119. Argument

             (a) General rule.—The argument shall be divided into
         as many parts as there are questions to be argued; and shall
         have at the head of each part—in distinctive type or in type
         distinctively displayed—the particular point treated therein,
         followed by such discussion and citation of authorities as are
         deemed pertinent.

Pa.R.A.P. 2119(a). “[I]t is an appellant’s duty to present arguments that are

sufficiently developed for our review. The brief must support the claims with

pertinent discussion, with references to the record and with citations to legal

authorities.”   Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa.Super.

2007), appeal denied, 596 Pa. 703, 940 A.2d 362 (2008) (internal citations

omitted). “This Court will not act as counsel and will not develop arguments


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on behalf of an appellant.” Id. If a deficient brief hinders this Court’s ability

to address any issue on review, we shall consider the issue waived.

Commonwealth v. Gould, 912 A.2d 869, 873 (Pa.Super. 2006) (holding

appellant waived issue on appeal where he failed to support claim with

relevant citations to case law and record). See also In re R.D., 44 A.3d 657

(Pa.Super. 2012), appeal denied, 618 Pa. 677, 56 A.3d 398 (2012) (holding

appellant waived issue, where argument portion of appellant’s brief lacked

meaningful discussion of, or citation to, relevant legal authority regarding

issue generally or specifically; appellant’s lack of analysis precluded

meaningful appellate review).

      Instantly, Appellant did not properly develop his argument section for

his fourth appellate issue, concerning the Commonwealth’s expert witness,

Dr. Scribano. Appellant notes several reasons why he thinks Dr. Scribano was

an unreliable witness, but Appellant does not discuss how this relates to

ineffective assistance of counsel or cite to relevant law.       See Pa.R.A.P.

2119(a). We decline to make Appellant’s argument for him.           See Hardy,

supra. Accordingly, Appellant waived his fourth appellate issue regarding Dr.

Scribano’s testimony. See In re R.D., supra; Gould, supra.

      In his remaining issues combined, Appellant announces the PCRA court

improperly relied on counsel’s Turner/Finley no-merit letter when the court

dismissed his PCRA petition without an evidentiary hearing.            Appellant

contends trial counsel was ineffective for failing to object at trial to evidence


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of prior bad acts, specifically related to Appellant’s acts of abuse of Victim,

which occurred before Appellant’s eighteenth birthday.        Appellant further

contends appellate counsel was ineffective for not preserving the prior-bad-

acts claim on direct appeal.

      Appellant also avers trial counsel was ineffective because counsel did

not request a competency hearing regarding Victim, where Victim’s testimony

may have been tainted during an interview with a social worker. Appellant

claims the many instances of ineffective assistance of counsel amount to

cumulative error.     Appellant concludes this Court should dismiss his

convictions or order a new trial. We disagree.

      Our standard of review of the denial of a PCRA petition is limited to

examining whether the evidence of record supports the court’s determination

and whether its decision is free of legal error. Commonwealth v. Conway,

14 A.3d 101, 109 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795

(2011). This Court grants great deference to the findings of the PCRA court if

the record contains any support for those findings. Commonwealth v. Boyd,

923 A.2d 513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d

74 (2007).     We give no such deference, however, to the court’s legal

conclusions.   Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super.

2012). Further, a petitioner is not entitled to a PCRA hearing as a matter of

right; the PCRA court can decline to hold a hearing if there is no genuine issue

concerning any material fact, the petitioner is not entitled to PCRA relief, and


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no purpose would be served by any further proceedings. Commonwealth v.

Wah, 42 A.3d 335, 338 (Pa.Super. 2012); Pa.R.Crim.P. 907.

      The   law   presumes    counsel   has   rendered    effective   assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). Under the

traditional analysis, to prevail on a claim of ineffective assistance of counsel,

a petitioner bears the burden to prove his claims by a preponderance of the

evidence. Commonwealth v. Turetsky, 925 A.2d 876 (Pa.Super. 2007),

appeal denied, 596 Pa. 707, 940 A.2d 365 (2007).           The petitioner must

demonstrate: (1) the underlying claim is of arguable merit; (2) counsel had

no reasonable strategic basis for the asserted action or inaction; and (3) but

for the errors and omissions of counsel, there is a reasonable probability that

the outcome of the proceedings would have been different. Id. See also

Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999).                    “A

reasonable probability is a probability that is sufficient to undermine

confidence in the outcome of the proceeding.” Commonwealth v. Spotz,

624 Pa. 4, 34, 84 A.3d 294, 312 (2014) (quoting Commonwealth v. Ali, 608

Pa. 71, 86-87, 10 A.3d 282, 291 (2010)). “Where it is clear that a petitioner

has failed to meet any of the three, distinct prongs of the…test, the claim may

be disposed of on that basis alone, without a determination of whether the

other two prongs have been met.” Commonwealth v. Steele, 599 Pa. 341,

360, 961 A.2d 786, 797 (2008).




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      “The threshold inquiry in ineffectiveness claims is whether the

issue/argument/tactic which counsel has foregone and which forms the basis

for the assertion of ineffectiveness is of arguable merit….” Commonwealth

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot be

found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).

         Once this threshold is met we apply the ‘reasonable basis’
         test to determine whether counsel’s chosen course was
         designed to effectuate his client’s interests. If we conclude
         that the particular course chosen by counsel had some
         reasonable basis, our inquiry ceases and counsel’s
         assistance is deemed effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

         Prejudice is established when [a defendant] demonstrates
         that counsel’s chosen course of action had an adverse effect
         on the outcome of the proceedings. The defendant must
         show that there is a reasonable probability that, but for
         counsel’s unprofessional errors, the result of the proceeding
         would have been different. A reasonable probability is a
         probability sufficient to undermine confidence in the
         outcome. In [Kimball, supra], we held that a “criminal
         defendant alleging prejudice must show that counsel’s
         errors were so serious as to deprive the defendant of a fair
         trial, a trial whose result is reliable.”

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002)

(some internal citations and quotation marks omitted).

      “Where matters of strategy and tactics are concerned, counsel’s

assistance is deemed constitutionally effective if he chose a particular course

that had some reasonable basis designed to effectuate his client’s interests.”

Commonwealth v. Sneed, 616 Pa. 1, 19, 45 A.3d 1096, 1107 (2012).

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         A finding that a chosen strategy lacked a reasonable basis
         is not warranted unless it can be concluded that an
         alternative not chosen offered a potential for success
         substantially greater than the course actually pursued. A
         claim of ineffectiveness generally cannot succeed through
         comparing, in hindsight, the trial strategy employed with
         alternatives not pursued.

Id. at 19-20, 45 A.3d at 1107 (internal citations and quotation marks

omitted).   Numerous claims of ineffective assistance of counsel will not

cumulatively warrant relief if the claims fail individually. Commonwealth v.

Koehler, 614 Pa. 159, 36 A.3d 121 (2012). See also Commonwealth v.

Washington, 592 Pa. 698, 927 A.2d 586 (2007) (stating claim of cumulative

error fails if individual claims do not warrant relief).

      Generally, character evidence is not admissible to prove conduct.

Pa.R.E. 404(b).

         Rule 404. Character evidence not admissible to prove
         conduct; exceptions; other crimes

                                    *     *      *

         (b) Other crimes, wrongs, or acts.

         (1) Evidence of other crimes, wrongs, or acts is not
         admissible to prove the character of a person in order to
         show action in conformity therewith.

         (2) Evidence of other crimes, wrongs, or acts may be
         admitted for other purposes, such as proof of motive,
         opportunity, intent, preparation, plan, knowledge, identity
         or absence of mistake or accident.

         (3) Evidence of other crimes, wrongs, or acts proffered
         under subsection (b)(2) of this rule may be admitted in a
         criminal case only upon a showing that the probative value
         of the evidence outweighs its potential for prejudice.

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Pa.R.E. 404(b)(1)-(b)(3). There are limited exceptions to the admission at

trial of evidence of other crimes or prior bad acts. Id.; Commonwealth v.

Young, 989 A.2d 920, 924 (Pa.Super. 2010).

          One such exception arises in the prosecution of sexual
          offenses.    Evidence of prior sexual relations between
          defendant and his…victim is admissible to show a passion or
          propensity for illicit sexual relations with the victim. This
          exception is limited, however. The evidence is admissible
          only when the prior act involves the same victim and the
          two acts are sufficiently connected to suggest a continuing
          course of conduct. The admissibility of the evidence is not
          affected by the fact that the prior incidents occurred outside
          of the statute of limitations.

Id. (emphasis in original). Evidence that provides the factfinder with the res

gestae,   or    complete    history,   of   a   crime   holds   special   significance.

Commonwealth v. Wattley, 880 A.2d 682, 687 (Pa.Super. 2005), appeal

dismissed, 592 Pa. 304, 924 A.2d 1203 (2007).

               [T]he trial court is not…required to sanitize the trial to
               eliminate all unpleasant facts from…consideration
               where those facts are relevant to the issues at hand
               and form part of the history and natural development
               of the events and offenses for which the defendant is
               charged.

          Res gestae evidence is of particular import and significance
          in trials involving sexual assault. By their very nature,
          sexual assault cases have a pronounced dearth of
          independent eyewitnesses, and there is rarely any
          accompanying physical evidence…. [In these] cases the
          credibility of the complaining witness is always an issue.

Id. (emphasis in original) (internal citations and quotation marks omitted).

      “The general rule in Pennsylvania is that every person is presumed


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competent to be a witness.” Commonwealth v. Delbridge, 578 Pa. 641,

663, 855 A.2d 27, 39 (2003). “A decision on the necessity of a competency

hearing is addressed to the discretion of the trial court.” Id.

         A competency hearing concerns itself with the minimal
         capacity of the witness to communicate, to observe an event
         and accurately recall that observation, and to understand
         the necessity to speak the truth. A competency hearing is
         not concerned with credibility.        Credibility involves an
         assessment of whether…what the witness says is true; this
         is a question for the fact finder. An allegation that the [child
         witness’] memory of the event has been tainted raises a red
         flag regarding competency, not credibility. Where it can be
         demonstrated that a [witness’] memory has been affected
         so that their recall of events may not be dependable,
         Pennsylvania law charges the trial court with the
         responsibility to investigate the legitimacy of such an
         allegation.

Id. at 663, 855 A.2d at 40 (emphasis added). Furthermore,

         In order to trigger an investigation of competency on the
         issue of taint, the moving party must show some evidence
         of taint. Once some evidence of taint is presented, the
         competency hearing must be expanded to explore this
         specific question. During the hearing the party alleging taint
         bears the burden of production of evidence of taint and the
         burden of persuasion to show taint by clear and convincing
         evidence. Pennsylvania has always maintained that since
         competency is the presumption, the moving party must
         carry the burden of overcoming that presumption.

Id. at 664, 855 A.2d at 40.

      Instantly, Appellant sexually abused Victim for approximately four

years, beginning when Appellant was fifteen years old. Based on this activity,

the Commonwealth charged Appellant with numerous sexual offenses, which

occurred from July 2011 to September 2012, after Appellant’s eighteenth


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birthday. Before trial, the Commonwealth filed a motion in limine to introduce

evidence of Appellant’s acts of abuse of Victim, which had occurred before

Appellant’s eighteenth birthday. The court granted the motion in limine for

the limited purpose of providing the jury with a complete history of the case.

After the jury convicted Appellant of various sex offenses, the court held a

hearing and imposed SVP status on Appellant.           Appellant received an

aggregate term of 20 to 40 years’ imprisonment plus 2 years’ probation along

with notice of his SVP status and SORNA registration and reporting

requirements for life as a Tier III sexual offender.

      Here, the court granted in part the Commonwealth’s pretrial motion in

limine and later admitted evidence at trial of Appellant’s prior sexual acts

against Victim. The court allowed this evidence for the limited purpose of

providing the jury with the res gestae or complete history of the case as well

as Appellant’s course of conduct. See Wattley, supra. The evidence was

necessary for the jury to appreciate Appellant’s lengthy period of steady

grooming and escalation of sexual conduct toward Victim and to furnish

context for the charges actually pending against Appellant. Any opposition of

defense counsel would have not merited relief. Therefore, neither trial counsel

nor appellate counsel had reason to pursue this claim.       See Poplawski,

supra.

      With respect to claims of taint regarding Victim’s testimony, Appellant’s

bland assertions, absent specifics, are no more than mere conjecture and


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constitute waiver on appeal. Appellant’s brief fails to support his claims with

pertinent discussion, references to the record, and citations to relevant legal

authorities. See Hardy, supra. Based upon the foregoing, Appellant’s claims

of ineffective assistance of counsel fail individually.     Therefore, he cannot

succeed on a claim of cumulative error. See Koehler, supra. As Appellant

was not entitled to relief, based on the issues raised in his PCRA petition, the

court properly issued Rule 907 notice and denied PCRA relief without a

hearing. See Wah, supra. Accordingly, we affirm the PCRA court’s decision

to deny relief on Appellant’s ineffective assistance of counsel claims.         See

Conway, supra.

      Nevertheless, we are mindful of recent case law calling into question the

retroactive application of sex offender registration under SORNA to offenses

committed before the effective date of SORNA.             Given the timeliness of

Appellant’s PCRA petition, we elect to review the legality of Appellant’s

sentence on this basis sua sponte. See Commonwealth v. DiMatteo, ___

Pa. ___, 177 A.3d 182 (2018) (reiterating general rule that legality of

sentence    can   be   reviewed   in    context   of     timely   PCRA     petition);

Commonwealth v. Randal, 837 A.2d 1211 (Pa.Super. 2003) (en banc)

(explaining challenges to illegal sentence cannot be waived and may be raised

by this Court sua sponte, assuming jurisdiction is proper; illegal sentence must

be vacated).

      The   Pennsylvania    Supreme       Court   held    that    the    registration


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requirements     under     SORNA      constitute     criminal     punishment.

Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017), cert. denied,

___ U.S. ___, 138 S.Ct. 925, 200 L.Ed.2d 213 (2018).        The Muniz Court

declared SORNA’s purpose was punitive in effect, notwithstanding the General

Assembly’s intended purpose for the law as a civil remedy. Id. at 748-49,

164 A.3d at 1218.

     A criminal statute is ex post facto if it applies to events which occurred

before the law was effective and the law disadvantages the offender. Id. at

710, 164 A.3d 1196. Muniz declared SORNA unconstitutional to the extent it

violates the ex post facto clauses of both the United States and Pennsylvania

Constitutions. Id. at 749, 164 A.3d at 1219. SORNA additionally violates the

ex post facto clause of the Pennsylvania Constitution because it places a

unique burden on the right to reputation and undermines the finality of

sentences by demanding more severe registration requirements. Id. at 756-

57, 164 A.2d at 1223. This Court has since held Muniz created a substantive

rule that retroactively applies in the collateral context. Commonwealth v.

Rivera-Figueroa, 174 A.3d 674, 678 (Pa.Super. 2017).

     Instantly, Appellant committed his offenses between July 2011 and

September 2012, before the effective date of SORNA (December 20, 2012).

See 42 Pa.C.S.A. §§ 9799.10, 9799.41. Megan’s Law III applied at that time

and required lifetime registration as a sex offender for Appellant’s sex

offenses. See 42 Pa.C.S.A. § 9795.1(b)(2) (expired December 19, 2012).


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Under SORNA, Appellant’s sex offenses also carry a lifetime registration

requirement but with increased reporting requirements. See 42 Pa.C.S.A. §§

9799.14(d)(2), (4), (8); 9799.15(a)(3), (6). Because Appellant committed

his offenses before the effective date of SORNA, the increased reporting

requirements of SORNA constitute greater punishment for Appellant.       See

Muniz, supra. Thus, the imposition of SORNA registration requirements on

Appellant violates the ex post facto clauses of both the United States and

Pennsylvania Constitutions.1 See id.; Rivera-Figueroa, supra.

       The Muniz decision that the registration requirements under SORNA

constituted criminal punishment led to a related issue concerning the validity

of the process and imposition of SVP status on a defendant.              See

Commonwealth v. Butler, 173 A.3d 1212, 1217 (Pa.Super. 2017), appeal

granted, ___ Pa. ___, 190 A.3d 581 (2018). In Butler, this Court examined

the SVP process and held: “[U]nder Apprendi and Alleyne,[2] a factual


____________________________________________


1 Further, the General Assembly created Subchapter I through Act 10 and
amended in Act 29, in response to Muniz and its progeny. See H.B. 1952,
202 Gen. Assem., Reg. Sess. (Pa. 2018), Act 29 of 2018; H.B. 631, 202 Gen.
Assem., Reg. Sess. (Pa. 2018), Act 10 of 2018. Subchapter I addresses sex
offenders who committed an offense before December 20, 2012. See 42
Pa.C.S.A. §§ 9799.51-9799.75. Additionally, this Court recently held the
effective date of SORNA controls for purposes of this ex post facto analysis.
See Commonwealth v. Wood, ___ A.3d ___, 2019 PA Super 117 (filed April
15, 2019) (en banc); Commonwealth v. Lippincott, ___ A.3d ___, 2019 PA
Super 118 (filed April 15, 2019) (en banc).

2 Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000) and Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186
L.Ed.2d 314 (2013).

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finding, such as whether a defendant has a mental abnormality or personality

disorder that makes him…likely to engage in predatory sexually violent

offenses, that increases the length of registration must be found beyond a

reasonable doubt by the chosen fact-finder.” Id. at 1217 (addressing SVP

status sua sponte as illegal sentence). The Butler Court further held: “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.” Id. at 1218. See 42 Pa.C.S.A. § 9799.24(e)(3) (stating: “At the

hearing prior to sentencing, the court shall determine whether the

Commonwealth has proved by clear and convincing evidence that the

individual is a sexually violent predator”). The Butler Court concluded that

trial courts can no longer designate convicted defendants as SVPs or hold SVP

hearings, “until [the] General Assembly enacts a constitutional designation

mechanism.” Id. (vacating appellant’s SVP status and remanding to trial court

for sole purpose of issuing appropriate notice under 42 Pa.C.S.A. § 9799.23,

governing reporting requirements for sex offenders, as to appellant’s

registration obligation).   In reaching its decision, the Butler Court simply

applied Alleyne and Apprendi to the SVP process, in light of Muniz.

      Here, Appellant’s judgment of sentence became final on December 24,

2015, after the United States Supreme Court had decided Alleyne on June

17, 2013. See Pa.R.A.P. 903(a); Alleyne, supra. Applying Alleyne in a new


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context, this Court decided Butler on October 31, 2017, to deem

unconstitutional the current mechanism for imposition of SVP status used in

the present case. See Butler, supra. See also Chaidez v. United States,

568 U.S. 342, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013) (stating case does not

announce new constitutional rule that requires Teague3 retroactivity analysis

when case takes principle that governed prior decisions and applies it to new

facts).    Both Muniz and Butler were decided during the pendency of

Appellant’s timely PCRA petition.         Under these new cases, Appellant’s SVP

status constitutes an illegal sentence subject to correction. See 42 Pa.C.S.A.

§ 9542 (stating persons serving illegal sentence may obtain collateral relief);

DiMatteo, supra (noting unconstitutionality of Section 7508 in light of

Alleyne and allowing Alleyne relief in PCRA context, so long as judgment of

sentence     was     not    final   before     Alleyne   was   decided)   (citing

Commonwealth v. Ruiz, 131 A.3d 54 (Pa.Super. 2015) (applying Alleyne

to correct illegal sentence in context of timely-filed PCRA petition)).

        To quiet any conflict in the law, we now hold a PCRA petitioner can

obtain relief from an illegal sentence under Butler, if the petition is timely

filed, as long as the relevant judgment of sentence became final after June

17, 2013, the date Alleyne was decided.            Because Butler simply applied

Alleyne principles to the SVP process, Butler did not announce a new



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3   Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

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constitutional rule that required a Teague retroactivity analysis.          See

Chaidez, supra. Therefore, the date of the Alleyne decision, not the date

of the Butler decision, controls for purposes of obtaining PCRA relief from the

imposition of SVP status.

      Additionally, we hold Appellant is entitled to PCRA relief under Muniz

and Rivera-Figueroa, due to the ex post facto imposition of SORNA

registration requirements which rendered the sentence illegal. Nevertheless,

Appellant is not entitled to any relief on the ineffective assistance of counsel

issues he raised in his timely PCRA petition and on appeal. Accordingly, we

affirm in part but vacate (1) the judgment of sentence, to the extent it requires

registration and reporting requirements under SORNA, and (2) Appellant’s

SVP status; and we remand the case to the trial court to instruct Appellant on

his proper registration and reporting requirements.

      Order affirmed in part; SORNA requirements and SVP status vacated;

case remanded with instructions. Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/7/19




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