J-S33027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WILLIAM HENRY ROBINSON III,                :
                                               :
                       Appellant               :   No. 2255 EDA 2017

              Appeal from the PCRA Order Entered June 14, 2017
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0000492-2013


BEFORE:      OTT, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                          FILED AUGUST 17, 2018

       William Henry Robinson appeals from the order entered on June 14,

2017, denying his request for relief under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Robinson raises an after-discovered

exculpatory evidence claim in the form of recantation testimony from the

victim of Robinson’s sex offenses. He also raises ineffectiveness claims and

challenges his sexually violent predator (“SVP”) designation. We affirm in part,

vacate in part, and remand.

       A jury convicted Robinson, in October 2013, of rape of a child,

aggravated indecent assault, indecent assault, and corruption of minors.1 The

trial court sentenced Robinson to an aggregate term of twenty-seven to fifty-
____________________________________________


*    Former Justice specially assigned to the Superior Court.

1
  18 Pa.C.S.A. §§ 3121(c), 3125(a)(7), 3126(a)(7), and 6301(a)(1)(i),
respectively.
J-S33027-18



four years’ imprisonment and designated Robinson as a SVP. He thus was

subject to a lifetime registration requirement under Section 9799.15(a)(6) of

the Sexual Offender Registration and Notification Act (“SORNA”). See 42

Pa.C.S.A. § 9799.15(a)(6). Robinson filed an appeal to this Court, in which he

did not challenge his SVP designation. This Court affirmed his judgment of

sentence on August 27, 2015. Robinson did not seek allowance of appeal.

      Robinson then filed, on August 2, 2016, through new, privately retained

counsel, a petition that he styled as an “Amended Petition for Habeas Corpus

Relief.” Although he labeled the filing an “amended” petition, no prior habeas

corpus petition appears in the record. He asserted several claims of

ineffectiveness by trial and appellate counsel for failing to file a motion to

suppress a statement he made to a detective; failing to object to prior bad

acts evidence; and failing to raise trial counsel’s ineffectiveness on appeal. He

also claimed after-acquired evidence in the form of the victim’s recantation,

and further requested relief due to the alleged cumulative effect of the errors

he claimed. See Petition, filed 8/2/16, at 4-18 (unpaginated).

      The PCRA court treated the habeas corpus petition as a timely PCRA

petition and on September 28, 2016, issued a notice of intent to dismiss the

petition without a hearing, pursuant to Pa.R.Crim.P. 907. Robinson filed a

response to the Rule 907 notice, as well as a certification pursuant to 42




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Pa.C.S.A. § 9545(d)(1),2 that the victim’s sister would testify that the victim

had recanted her trial testimony in a text message. Robinson alleged that the

text message read, “I told you that I made up the story that Will touched and

raped me. . . . Because I felt that would get you away from him and make

you safe.” Petition at Exhibit B.

       On December 21, 2016, the PCRA court re-issued its Rule 907 notice

as to the ineffectiveness claims, but granted an evidentiary hearing for

Robinson’s claim of exculpatory evidence.

       At the hearing, the Commonwealth presented the testimony of the

victim, K.W. She testified that her sister told her that Robinson had passed a

polygraph test. N.T., PCRA Evidentiary Hearing, 6/2/17, at 14. When she

asked how Robinson could pass a polygraph test when he had raped and

touched her, her sister told her that she was going to meet with an attorney

and would let her know what would happen next. Id. at 14-15. A few weeks

later, on May 11, 2016, K.W.’s sister told her that she needed to talk to her,

and K.W. went to her sister’s house. Id. at 9, 16. K.W.’s sister asked her if

she was, “ready to go back to court” and K.W. replied that she was not. Id.

at 17. K.W.’s sister then told her there were two ways that she could avoid

going back to court: (1) write the text message in question, or (2) sign a
____________________________________________


2
  “Where a petitioner requests an evidentiary hearing, the petition shall
include a signed certification as to each intended witness stating the witness’s
name, address, date of birth and substance of testimony and shall include any
documents material to that witness’s testimony. Failure to substantially
comply with the requirements of this paragraph shall render the proposed
witness’s testimony inadmissible.” 42 Pa.C.S.A. § 9545(d)(1).

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statement recanting her testimony. Id. at 18-19. K.W. testified that she

decided to send the text message and her sister told her what to write in the

text message. Id. at 19. After her sister made at least one revision to the text

message, K.W. sent it to her sister’s phone while they were still together in

her sister’s house. Id.

      K.W. testified that, despite the text message, she was not recanting her

testimony, and that her testimony at both the trial and the PCRA hearing was

truthful. Id. at 19-20.

      The Commonwealth also introduced into evidence recordings and

transcripts of phone calls between the victim’s sister and Robinson that

occurred while Robinson was in prison. These calls “revealed [Robinson’s]

efforts to persuade [the victim’s sister] to manipulate [K.W.] into recanting

her allegations against [Robinson].” PCRA Court Opinion (“PCO”), filed

10/17/17, at 4. The day after the victim sent the text message at issue to her

sister, May 12, 2016, the following was recorded during a phone call between

Robinson and the victim’s sister:

      [Victim’s Sister]: So . . . just know that . . . I got . . . I got what
      you needed . . . so you go ahead and do what you gotta do . . .
      so that you can go ahead and come home . . . so . . .

      [Robinson]: *Unintelligible response*

      [Victim’s Sister]: I did what I had to do.

Prison Call Transcript, 05/12/06, at 3.




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      Robinson did not present any evidence other than the text messages

between K.W. and her sister. The victim’s sister did not testify.

      On June 14, 2017, the court rejected Robinson’s claim of exculpatory

evidence and dismissed the PCRA petition. This timely appeal followed.

      Robinson raises three issues in this Court:

      I.    Whether the PCRA court erred in denying relief, after the
            hearing, because [Robinson] established exculpatory
            evidence that later became available to him in the form of
            recantation testimony by the complainant who sent a text
            message to her sister that “I told you that I made up the
            story that Will touched and raped me . . . because I felt like
            that would get you away from him and make you safe?”

      II.   Whether the PCRA court erred in denying relief, without a
            hearing, on allegations that trial counsel rendered
            ineffective assistance in that:

            a. Counsel failed to file a Motion to Suppress [Robinson’s]
               statements made to Detective Heather Long, while he
               was being escorted into a jail cell following his
               preliminary hearing at which time he was represented by
               counsel?

            b. Counsel failed to object to the admission of prior bad act
               evidence and/or fail[ed] to requesting a limiting
               instruction with respect to the evidence that [Robinson]
               committed      physical   acts    of  violence     against
               complainant’s sister because the Commonwealth’s
               Motion in Limine filed pursuant to Pa.R.E. 404(b) lacked
               specificity, and [it was] highly inflammatory evidence
               whose prejudicial impact outweighed its probative value?

            c. Counsel failed to object and/or request a limiting
               instruction to the admission of evidence by the
               complainant’s mother that [Robinson] started dating the
               complainant’s fourteen (14) year old sister when he was
               eighteen (18) years old because this is prior bad act
               evidence for which the Commonwealth failed to provide


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J-S33027-18


               notice of its intention to introduce at the time of trial, and
               its prejudicial impact outweighed its probative value?

      III.   Whether the finding by the trial court that [Robinson] is a
             Sexually Violent Predator, and subject to the registration
             requirements of the Sexual Offender Registration and
             Notification Act (“SORNA”) is unconstitutional, and as such
             an illegal sentence?

Robinson’s Br. at 4-5 (unnecessary capitalization and suggested answers

omitted).

AFTER-DISCOVERED EXCULPATORY EVIDENCE

      Robinson contends that the PCRA court erred in not granting a new trial

based upon his claim of after-discovered exculpatory evidence. See

Robinson’s Br. at 26. To establish such a claim, a PCRA petitioner must plead

and prove all of the following: (1) the evidence was discovered after trial and

could not have been obtained prior to trial through reasonable diligence; (2)

the evidence is not cumulative; (3) the evidence is not being used solely for

impeachment purposes; and (4) the evidence would have likely compelled a

different verdict. Commonwealth v. D’Amato, 856 A.2d 806, 823 (Pa.

2004).

      Robinson predicated his claim on the victim’s alleged recantation of her

trial testimony. However, “recanting testimony is exceedingly unreliable, and

it is the duty of the court to deny a new trial where it is not satisfied that such

testimony is true.” Commonwealth v. Mosteller, 284 A.2d 786, 788 (Pa.

1971) (citing Commonwealth v. Coleman, 264 A.2d 649, 651 (Pa. 1970)).

As such, the PCRA court must assess “the credibility and significance of the



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recantation in light of the evidence as a whole,” before granting PCRA relief

based on a trial witness’s alleged recantation. D’Amato, 856 A.2d at 825. We

therefore give deference to the findings of the PCRA court. Commonwealth

v. Johnson, 966 A.2d 523, 539 (Pa. 2009).

      Here, the PCRA court assessed K.W.’s credibility and the significance of

the text message in light of all the evidence presented, and concluded that

K.W. was not, in fact, recanting her trial testimony. See PCO at 7. The record

supports this conclusion. At the evidentiary hearing, K.W. was adamant that

she was not recanting her trial testimony and that Robinson had raped her.

Additionally, she explained that her sister had coerced her into sending the

alleged recantation text, by using K.W.’s fear of having to go back to court

against her. The PCRA court aptly stated:

      Here, [Robinson] bore the burden of proof at the PCRA hearing.
      He presented . . . only the text messages purportedly sent by
      [K.W.] to [her sister]. . . . The Commonwealth conversely,
      presented credible testimony and evidence demonstrating that
      [K.W.] did not actually recant her allegations against [Robinson].
      . . . In addition, [K.W.] testified credibly at the PCRA hearing that
      she was not recanting her trial testimony. . . .

Id.

      Robinson failed to prove that the evidence presented would have likely

resulted in a different verdict and therefore no relief is due. Thus, the PCRA

court did not err in denying relief to Robinson.




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INEFFECTIVE ASSISTANCE OF COUNSEL

       Next, Robinson contends that the PCRA court erred in denying him relief

for his three claims of trial counsel ineffectiveness. Robinson claims that trial

counsel was ineffective for failing to: (1) file a motion to suppress a statement

that Robinson made to a detective after his preliminary hearing; (2) object to,

and/or request a limiting instruction for, K.W.’s testimony that she saw

Robinson physically abuse her sister; and (3) object to, and/or request a

limiting instruction for, testimony by K.W.’s mother that Robinson started

dating K.W.’s sister when he was 18 years old and K.W.’s sister was 14 years

old.

       When a petitioner alleges ineffective assistance of counsel, counsel is

presumed to have rendered effective assistance. Commonwealth v.

Turetsky, 925 A.2d 876, 880 (Pa.Super. 2007). A claim of ineffective

assistance of counsel requires the petitioner to show: (1) the underlying claim

has arguable merit; (2) no reasonable basis existed for counsel’s action or

inaction; and (3) the petitioner “suffered prejudice as a result of counsel’s

error, with prejudice measured by whether there is a reasonable probability

the result of the proceeding would have been different.” Commonwealth v.

Treiber, 121 A.3d 435, 445 (Pa. 2015). A claim of ineffectiveness will be

rejected if the petitioner fails to satisfy any prong of the test. Commonwealth

v. Sattazahn, 952 A.2d 640, 653 (Pa. 2008).




                                      -8-
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      FAILURE TO FILE MOTION TO SUPPRESS

      On the morning of the day of trial, the Commonwealth moved in limine

to introduce into evidence Robinson’s statements to Detective Heather Long.

The Commonwealth explained the circumstances of Robinson speaking with

Detective Long:

      [T]he situation that occurred was after the preliminary hearing[,]
      Detective Long was putting another prisoner into the holding cell
      at Pottstown. [Robinson] said, I want to talk to you. Before she
      could answer, he said, I did [not] put my penis in [K.W.’s] vagina,
      but I kissed her. [Detective Long] said, I can[not] talk to you
      without your lawyer present. I need to talk to your lawyer first to
      see if I have permission to talk to you. [Detective Long] goes and
      calls Tom Carroll, who represented [Robinson] at the preliminary
      hearing. Tom Carroll tells Detective Long to inform [Robinson] not
      to say anything. She goes back and informs him of that. And he
      says, F my attorney, I kissed her, but I did [not] put my penis in
      her vagina, that is why I was laughing during the prelim[inary]
      [hearing]. . . .

N.T., Trial, 10/8/13, at 3-4.

      Defense counsel did not object to the Commonwealth presenting this

evidence at trial and conceded that Robinson had waived his right to counsel

by initiating the conversation with Detective Long. Id. at 6. Detective Long

testified that she did not ask Robinson any questions prior to him making the

above statements. Id. at 101.

      Based on the record, it is clear, as the PCRA court concluded, that

“[Robinson]. . . volunteered the statements. As such, no viable suppression

issue existed.” PCO at 9; see also Commonwealth v. Avondet, 654 A.2d

587, 589 (Pa.Super. 1995) (concluding statements not made in response to



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police conduct or questioning were not subject to suppression). Thus,

Robinson’s claim of ineffectiveness fails because his underlying claim lacks

arguable merit. See Commonwealth v. Tedford, 960 A.2d 1, 47 (Pa. 2008)

(rejecting ineffectiveness claim where underlying claim lacked arguable

merit). Therefore, the PCRA court did not err in denying Robinson relief on

this claim.

      PRIOR BAD ACTS

      Robinson next contends that trial counsel was ineffective for failing to

object to and/or ask for a limiting jury instruction regarding evidence of what

he characterizes as prior bad acts: (1) K.W.’s testimony that Robinson

physically abused her sister, and (2) the testimony of K.W.’s mother that

Robinson began dating the victim’s sister when she was underage.

      Generally, prior bad act evidence is inadmissible to show a defendant,

in allegedly committing the crime, acted in conformity with those prior bad

acts. Commonwealth v. Aikens, 990 A.2d 1181, 1185 (Pa.Super. 2010).

However, prior bad act evidence may be admissible when offered for a proper

purpose, such as to show (where relevant and otherwise admissible) motive,

identity, opportunity, preparation, or absence of mistake. Commonwealth v.

Dillon, 925 A.2d 131, 137 (Pa. 2007). The admissibility of evidence, including

prior bad act evidence, is within the discretion of the trial court.

Commonwealth v. Johnson, 638 A.2d 940, 942 (Pa. 1994). The trial court

must balance the probative value of the evidence against its prejudicial effect.

Commonwealth v. Ross, 57 A.3d 85, 98 (Pa.Super. 2012) (en banc) (citing

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Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009)). Further, in

a criminal case, the Commonwealth must provide notice before trial or during

trial, (if permitted by the court), of the general nature of the prior bad acts it

intends to introduce at trial. Pa.R.E. 404(b)(3).

      Here, before trial, the Commonwealth filed a Motion in Limine, almost

four months before trial, to introduce prior bad act testimony by K.W. that she

observed Robinson physically abuse her sister and threaten to kill the victim

and the victim’s sister. See Commonwealth Motion in Limine, filed 6/12/13,

at 1-2 (unpaginated). It proffered to use this evidence to explain the lack of

prompt complaint by K.W. in reporting the sexual abuse. Id. at 2. At the

hearing on the motion, defense counsel objected to this evidence based on

lack of specificity. N.T., Trial, 10/7/13, at 28. The Commonwealth claimed that

K.W. would testify about an incident of physical abuse by Robinson against

her sister when the victim, Robinson, and the victim’s sister were on their way

to the orthodontist. Id. at 29. It also reiterated what was argued in its written

motion, that K.W. would testify about Robinson threatening to kill her sister.

Id. at 29. The trial court permitted the evidence. Id. at 31.

      While Robinson agrees that defense counsel objected to the motion

based on lack of specificity, he claims that counsel should have also objected

based on lack of notice from the Commonwealth. See Pa.R.E. 404(b)(3); See

Robinson’s Br. at 32-33. This argument is meritless. Rule 404(b)(3) requires

notice of “the general nature” of the evidence. The purpose of Rule 404(b)(3)

“is to prevent unfair surprise, and to give the defendant reasonable time to

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prepare an objection to, or ready a rebuttal for, such evidence to be

admissible.” Commonwealth v. Lynch, 57 A.3d 120, 125-126 (Pa.Super.

2012) (quoting Pa.R.E. 404, cmt).

      In this case, Robinson was on notice of the “general nature” of the

evidence that the Commonwealth wished to introduce at trial, i.e., domestic

abuse and threats. Additionally, in his PCRA petition, he admitted that “the

allegation of violence was in the discovery.” Petition at 12 (unpaginated).

Thus, unfair surprise was prevented and the lack of notice claim is without

merit. See Lynch, 57 A.3d at 126 (rejecting claim of lack of notice of prior

bad acts where defendant failed to demonstrate unfair surprise); see also

Commonwealth v. Stallworth, 781 A.2d 110, 118 n.2 (Pa. 2001)

(concluding sufficient notice where evidence of prior bad acts was in

discovery). Yet, Robinson claims that failing to object on the basis of notice

was highly prejudicial because, “the jury heard evidence that he hit a younger

female woman, who was the sister of the complainant.” Robinson’s Br. at 34.

While this may have been prejudicial to Robinson, the trial court determined

that the “probative value of the evidence,” i.e., K.W.’s lack of prompt

complaint, outweighed the potential for its prejudice. See Pa.R.E. 404(b)(2).

Additionally, the potential prejudice that Robinson could have suffered from

the jury hearing this evidence was cured by the limiting instruction that the

trial court gave to the jury. See Pa.R.E. 404(b)(2), cmt. (trial court may

consider whether and how much such potential for prejudice is reduced by

cautionary instructions). The trial court gave the following limiting instruction:

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             You have heard evidence tending to prove that the
      defendant was guilty of improper conduct for which he is not on
      trial. And I am speaking of the testimony to the effect that the
      defendant allegedly committed a domestic assault on the victim’s
      sister.

            This evidence is before you for a limited purpose. That is,
      for the purpose of tending to explain the victim’s lack of prompt
      complaint for the alleged sexual assaults.

             This evidence must not be considered by you in any other
      way other than for that purpose just stated. You must not regard
      this evidence as showing that the defendant is a person of bad
      character or criminal tendencies from which you might be inclined
      to infer guilt.

N.T., Trial, 10/8/13, at 171.

      Even if counsel had effectively objected on the basis of notice, there also

is not a reasonable probability that a different verdict would have resulted,

considering the jury found K.W.’s testimony credible concerning the acts of

sexual abuse. Therefore, this claim of ineffectiveness also fails as Robinson

has not proved prejudice. See Commonwealth v. Walker, 36 A.3d 1, 14

(Pa. 2011) (ineffectiveness claim rejected where defendant failed to establish

prejudice). The PCRA court properly dismissed Robinson’s claim of ineffective

assistance of counsel as it lacks merit and Robinson fails to establish prejudice.

      Robinson next contends that direct appellate counsel was ineffective for

failing to raise trial counsel’s alleged ineffectiveness for not objecting to K.W.’s

testimony on the basis of lack of notice. See Robinson’s Br. at 33-34. This

argument is without merit because claims of trial counsel ineffectiveness may

not be raised on appeal but instead must “await collateral review.” See

Commonwealth v. Britt, 83 A.3d 198, 203 (Pa.Super. 2013) (holding that


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appellant cannot seek review of ineffectiveness claims on direct appeal).

Therefore, the PCRA court did not err in dismissing this claim.

      Robinson also contends that trial counsel was ineffective for not

objecting to prior bad act evidence in the form of testimony from K.W.’s

mother, W.B. When asked how she met Robinson, W.B. testified that Robinson

started dating the victim’s sister when the victim’s sister was 14 years old.

N.T., Trial, 10/8/13, at 75. W.B. said she later found out that Robinson was

18 years old at the time. Id. at 76.

      Robinson contends that W.B.’s testimony regarding his relationship with

the victim’s sister was prior bad act evidence and, as such, counsel should

have objected to the testimony or asked for a limiting instruction. See

Robinson’s Br. at 35. He argues that this evidence was highly prejudicial

because the Commonwealth used it to show that he had a propensity to be in

a relationship with minor children. Id. For its part, the Commonwealth argues

that W.B.’s testimony was not prior bad act evidence because W.B. did not

testify that Robinson was having sexual relations with the victim’s sister when

she was a minor. See Commonwealth’s Br. at 23.

      Even assuming W.B.’s testimony constituted prior bad act evidence,

Robinson was not unfairly prejudiced by counsel’s failure to object. After a

review of the record, “[e]ven had trial counsel somehow raised a successful

objection and the testimony had been stricken, there is not a reasonable

probability, in light of the evidence of [Robinson’s] guilt, that the verdict would

have been different.” PCO at 10; see Commonwealth v. Koehler, 36 A.3d

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121, 150 (Pa. 2012) (concluding no prejudice where appellant failed to show

that but for counsel’s error, result of trial would have been different). The jury

clearly credited the testimony of the victim which overwhelming established

Robinson’s guilt and as such Robinson fails to show prejudice. The PCRA court

properly dismissed this claim.

ILLEGAL SENTENCE - SVP

      Last, Robinson challenges the portion of his judgment of sentence

finding him to be an SVP, contending that that portion of his sentence was

illegal pursuant to Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).

Muniz held that the registration requirements under SORNA constituted

criminal punishment. We subsequently applied Muniz in Commonwealth v.

Butler, 173 A.3d 1212, 1217 (Pa.Super. 2017), to hold that trial courts cannot

constitutionally apply SORNA’s SVP procedures. We explained that doing so

would unconstitutionally deprive a criminal defendant of the right to have a

jury determine whether the Commonwealth had proven all elements of the

crime charged beyond a reasonable doubt:

      [S]ince our Supreme Court has held [in Muniz] that SORNA
      registration requirements are punitive or a criminal penalty to
      which individuals are exposed, then under Apprendi [v. New
      Jersey, 530 U.S. 466 (2000),] and Alleyne [v. United States,
      133 S.Ct. 2151, 2163 (2013)], a factual finding, such as whether
      a defendant has a “mental abnormality or personality disorder that
      makes [him or her] likely to engage in predatory sexually violent
      offenses [,]” 42 Pa.C.S.A. § 9799.12, that increases the length of
      registration must be found beyond a reasonable doubt by the
      chosen fact-finder. Section 9799.24(e)(3) identifies the trial court
      as the finder of fact in all instances and specifies clear and
      convincing evidence as the burden of proof required to designate


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      a convicted defendant as an SVP. Such a statutory scheme in the
      criminal context cannot withstand constitutional scrutiny.

                                       ***

      [Thus], 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, 173 A.3d at 1217-1218.

      In light of Muniz and Butler, Robinson’s SVP status constitutes an

illegal sentence. Therefore, we vacate Robinson’s SVP status, pursuant to

Butler, and remand to the PCRA court to issue proper notice to Robinson

pursuant to 42 Pa.C.S.A. § 9799.23 (governing reporting requirements of sex

offenders).

      Judgment of sentence affirmed in part. SVP designation vacated. Case

remanded with instructions. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/17/2018




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