J-A17025-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BONNIE MARIE ROHN

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1858 EDA 2019

Appeal from the Judgment of Sentence Entered February 1, 2019

In the Court of Common Pleas of Northampton County Criminal Division 

at No(s): CP-48-CR-0001417-2018

BEFORE: BOWES, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McCAFFERY, J.: FILED: FEBRUARY 19, 2021

Bonnie Marie Rohn (Appellant) appeals from the judgment of sentence1

entered in the Northampton County Court of Common Pleas, following her 

guilty plea to statutory sexual assault.2 Appellant was also directed to register 

____________________________________________

1 While Appellant purported to appeal from the May 24, 2019, order denying 

her post-sentence motion, the appeal lies properly from the judgment of 

sentence entered February 1, 2019. See Commonwealth v. Borovichka, 

18 A.3d 1242, 1245 n.1 (Pa. Super. 2010). Accordingly, we have amended 

the caption.

Furthermore, we note the Commonwealth had also taken an appeal from 

Appellant’s judgment of sentence, docketed in this Court at 1867 EDA 2019. 

On December 30, 2019, however, the Commonwealth discontinued its appeal.

2 18 Pa.C.S. § 3122.1(b) (“A person commits a felony of the first degree when 

that person engages in sexual intercourse with a complainant under the age 

of 16 years and that person is 11 or more years older than the complainant 

and the complainant and the person are not married to each other.”).
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for life under the Pennsylvania Sex Offender Registration and Notification Act3

(SORNA). On appeal, she argues: (1) Subchapter H of SORNA is

unconstitutional as violative of due process; and (2) the registration

requirements are overly onerous and thus constitute cruel and unusual 

punishment. After careful review, we vacate the order denying Appellant’s

post-sentence motion, and remand in accordance with our Supreme Court’s 

decision in Commonwealth v. Torsilieri, 232 A.3d 567 (Pa. 2020). 

Otherwise, we affirm the judgment of sentence.

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3 42 Pa.C.S. §§ 9799.10 to 9799.42. This Court has summarized:

SORNA was originally enacted on December 20, 2011, effective 

December 20, 2012. Act 11 was amended on July 5, 2012, also 

effective December 20, 2012, and amended on February 21, 

2018, effective immediately, known as Act 10 of 2018, and, lastly, 

reenacted and amended on June 12, 2018. Acts 10 and 29 of 

2018 are referred to collectively as SORNA II. Through Act 10, as 

amended in Act 29 (collectively, SORNA II), the General Assembly 

split SORNA I’s former Subchapter H into a Revised Subchapter H 

and Subchapter I. Subchapter I applies to sexual offenders who 

committed an offense on or after April 22, 1996, but before 

December 20, 2012. See 42 Pa.C.S.A. §§ 9799.51-9799.75. 

Subchapter I contains less stringent reporting requirements than 

Revised Subchapter H, which applies to offenders who committed 

an offense on or after December 20, 2012. See 42 Pa.C.S.A. §§ 

9799.10-9799.42.

Commonwealth v. Asher, ___ A.3d ___, ___, 2020 WL 7487519 at *2 n.5 

(Pa. Super. 2020) (some citations to legislative history omitted).

Here, Appellant’s offenses occurred in 2017; thus, she is subject to 

registration under Revised Subchapter H.
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From January 2017 through December 2017, Appellant, who was 33 to 

34 years old, engaged in oral, vaginal, and anal intercourse with a male victim, 

who was then 15 to 16 years old. Order of Court, 5/24/19, at 1-2. The victim 

was living with Appellant, N.T. Plea, 10/26/18, at 8, and was “in her care.” 

Affidavit of Probable Cause, 2/9/18, at 1. On October 26, 2018, Appellant 

pleaded guilty to one count of statutory sexual assault, graded as a felony of 

the first degree.

On February 1, 2019, the trial court sentenced Appellant to 12 months, 

less two days to 24 months, less one day’s imprisonment, to be followed by 

eight years’ probation.4 The court also ordered Appellant to comply with 

lifetime registration under SORNA.5 Appellant objected on the record, arguing 

that SORNA registration “has been found to be unconstitutional in 36 of our 

neighboring counties.” N.T., 2/1/19, at 57. The Commonwealth responded 

that the “legislature has enacted Act 29, which is Constitutional unless the 

courts deem otherwise.” Id. at 57-58.

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4 This “sentence was in the mitigated range by two days.” Order of Court at 

3. Appellant was not found to be a sexually violent predator. N.T. 

Sentencing, 9/1/19, at 58.

5 At the sentencing hearing, the parties referred to “lifetime registration under 

Megan’s Law.” N.T., 9/1/19, at 57.

Nevertheless, we note statutory sexual assault under 18 Pa.C.S. 

§ 3122.1(b) — to which Appellant pleaded guilty — is a “Tier III” offense, 

carrying lifetime registration. See 42 Pa.C.S. § 9799.14(d)(3) (Tier III sexual 

offenses), 9799.15(a)(3) (individual convicted of a Tier III sexual offense shall 

register for life).
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On February 11, 2019, both the Commonwealth and Appellant filed 

timely post-sentence motions. The Commonwealth challenged the terms of 

Appellant’s sentence, whereas Appellant argued SORNA is punitive in nature

and violates due process under the United States and Pennsylvania 

Constitutions. Appellant relied on the decision in Torsilieri, in which the 

Chester County Court of Common Pleas had ruled Subchapter H 

unconstitutional. Appellant averred SORNA “punishes a person based on the 

application of an irrebuttable presumption,” and “impairs the fundamental 

right of reputation without notice and opportunity to be heard.” Appellant’s 

Motion for Post-Sentence Relief, 2/11/19, at 3. Appellant thus requested the 

court to declare SORNA unconstitutional and to vacate the portion of her 

sentence requiring her to register.

The trial court issued a detailed order on May 24, 2019, denying both 

parties’ post-sentence motions and setting forth its rationale.

On June 21, 2019, Appellant filed a timely notice of appeal, and on June 

24th, the Commonwealth filed a timely notice of appeal. The trial court 

entered separated orders, directing each party to file a Pa.R.A.P. 1925(b) 

statement of errors complained of on appeal. Both parties timely complied. 

The Commonwealth’s appeal was docketed in this Court at 1867 EDA 2019. 

On December 30, 2019, however, the Commonwealth filed a praecipe to 

discontinue its appeal. 
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At the present docket, 1858 EDA 2019, Appellant presents two issues 

for our review:

A. Does the application of SORNA including its amendments of 

February 21, 2018 signed into law as Act 10 of 2018 (H.B. 631) 

deny [Appellant] and all of those defendants like situated due 

process under Articles 1 and 11 of the Pennsylvania Constitution

by creating an irrebuttable presumption that those convicted of 

enumerated offenses under the Act “pose a high risk of 

committing additional sexual offenses” depriving them of their 

fundamental right to reputation and rendering the statute 

unconstitutional?

B. Does the application of SORNA including its amendments of 

February 21, 2018 signed into law as Act 10 of 2018 (H.B. 631) 

constitute criminal penalties and therefore its imposition of a 

mandatory life time registration constitutes cruel and unusual 

punishment for [Appellant] and all of those defendants like 

situated in violation of the Fifth and Fourteenth Amendments [to]

the United States Constitution and Article 1 Section 13 of the 

Pennsylvania Constitution?

Appellant’s Brief at 3.

In her first issue, Appellant avers “the use of an irrebuttable 

presumption[,] to classify an individual as a person who is a high risk to 

reoffend[,] is a constitutional violation.” Appellant’s Brief at 10. Appellant 

relies on In re J.B., 107 A.3d 1 (Pa. 2014) (J.B.), in which the Pennsylvania 

Supreme Court held the application of SORNA to juvenile offenders is 

unconstitutional. Appellant notes the J.B. Court applied the following test for 

determining whether an irrebutable presumption is unconstitutional: (1) 

whether the presumption “encroaches on an interest protected by the due 

process clause; (2) the presumption is not universally true; and (3) 

reasonable alternative means exist for ascertaining the presumed fact.” 
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Appellant’s Brief at 11 (citation omitted). Applying these factors to the instant 

matter, Appellant maintains: (1) she has a fundamental right to reputation 

that is “protected by the due process clause [and] which is encroached upon;”

(2) “there was evidence from an expert psychologist that Appellant “presents 

as a low-risk offender,” and furthermore, that “research on female sex 

offenders indicates that in general, they tend to be at a low risk for sexual reoffending;” and (3) there exists a reasonable alternative means for 

ascertaining the presumed fact — a sexually violent predator assessment or 

similar assessment to determine the likelihood of re-offense. Id. at 14-16.

After careful review of the procedural history, the parties’ arguments, 

and the applicable law, we conclude this issue is governed by this Court’s 

recent decision in Asher, 2020 WL 7487519. In that case, we stated:

While this case was pending on appeal, the Pennsylvania 

Supreme Court decided Torsilieri[. T]he Chester County Court 

of Common Pleas found Revised Subchapter H of SORNA II 

violated several provisions of both the United States and 

Pennsylvania Constitutions.[ T]he trial court concluded the 

statute violated Apprendi[6] and Alleyne[7] by allowing “the 

imposition of enhanced punishment based on an irrebuttable 

presumption of future dangerousness that is neither determined 

by the finder of fact nor premised upon proof beyond a reasonable 

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6 Apprendi v. N.J., 530 U.S. 466, 490 (2000) (other than the fact of a prior 

conviction, any fact that increases penalty for crime beyond prescribed 

statutory maximum must be submitted to jury and proved beyond reasonable 

doubt; it is unconstitutional for legislature to remove from jury the assessment 

of facts that increase prescribed range of penalties).

7 Alleyne v. U.S., 570 U.S. 99, 108 (2013) (any fact that increases mandatory 

minimum sentence for crime is an element that must be submitted to jury and 

found beyond reasonable doubt).
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doubt.” Torsilieri, [232 A.3d] at 575, quoting Trial Court Order, 

7/10/18, at 3. The Pennsylvania Supreme Court, emphasizing 

that deference to legislative policy-making is subject to 

constitutional limitations, considered the trial court’s conclusions 

in two categories: (1) an irrebuttable presumption challenge, and 

(2) based on its determination of punitive effect, the trial court 

concluded that the registration requirements, which can result in 

lifetime registration branding an offender as at high risk of 

recidivating, violated (a) the requirements of Apprendi and 

Alleyne, (b) imposed sentences in excess of the statutory 

maximum sentence, (c) constituted cruel and unusual 

punishment, and (d) violated the separation of powers doctrine by 

preventing trial courts from imposing individualized sentences

[sic]. Torsilieri, [232 A.3d] at 582-83.

[In Torsilieri, t]he Pennsylvania Supreme Court applied the 

Mendoza-Martinez factors and evaluated “the degree to which 

the trial court’s conclusions [were] based upon the scientific 

evidence presented by [Torsilieri.” 8] Torsilieri, [232 A.3d]at 

588. At his post-sentence hearing, Torsilieri had presented the 

affidavits and supporting documents of three expert witnesses 

“concluding that sexual offenders generally have low recidivism 

rates and questioning the effectiveness of sexual offender 

registration systems such as SORNA.” Id. at 574. The 

Commonwealth stipulated to the content of the exhibits, but not 

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8 Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). The Court in Muniz

explained: the Mendoza-Martinez factors are

a framework for determining whether the provisions of the Alaska 

statute were so punitive in effect as to negate the legislature’s 

intention to identify the scheme as civil. The Mendoza-Martinez

factors are as follows: “[w]hether the sanction involves an 

affirmative disability or restraint, whether it has historically been 

regarded as a punishment, whether it comes into play only on a 

finding of scienter, whether its operation will promote the 

traditional aims of punishment — retribution and deterrence, 

whether the behavior to which it applies is already a crime, 

whether an alternative purpose to which it may rationally be 

connected is assignable for it, and whether it appears excessive in 

relation to the alternative purpose assigned[.]”

Muniz, 164 A.3d at 1200 (OAJC) (citation omitted).
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to their validity or relevance, and did not offer any rebuttal expert 

testimony or documents with respect to these witnesses. Id. The 

Court stated:

We observe that the scientific evidence presented by 

[Torsilieri] during the post-sentence motion arguably 

influenced the trial court’s consideration of all five 

relevant factors and overtly drove the analysis of three. 

Accordingly, we conclude that its labeling of Revised 

Subchapter H as punitive was impacted by its 

assessment of [Torsilieri’s] expert evidence such 

that reevaluation of the balancing of the seven 

Mendoza-Martinez factors is appropriate following 

presentation of additional scientific evidence on 

remand. The trial court’s conclusion that Revised 

Subchapter H is punitive inevitably resulted in the court’s 

determination that the registration requirements were 

part of [Torsilieri’s] criminal sentence, and thus, subject 

to the various constitutional and statutory protections. 

Evaluating each challenge raised by [Torsilieri], 

the trial court concluded that [ ] Revised 

Subchapter H violated the dictates of Apprendi and 

Alleyne because it subjected offenders to increased 

registration provisions without a jury determining 

that the offender posed a risk of future 

dangerousness beyond a reasonable doubt[.]

Id. at 594 (emphasis added). Essentially, the Pennsylvania 

Supreme Court directed the trial court to reevaluate the 

Mendoza-Martinez factors, this time considering not only the 

defense’s scientific evidence, but that of the Commonwealth as 

well.

Asher, ___ A.3d at ___, 2020 WL 7487519 at **3-4 (some citations omitted).

The Asher Court then addressed the procedural history and issues 

before it:

Here, although Asher properly preserved his challenges at 

sentencing and in post-sentence motions, there is no factual 

record. Therefore, in accordance with Torsilieri, we vacate and 

remand for a hearing at which the parties can present evidence 

for and against the relevant legislative determinations discussed 
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above. See Commonwealth v. Mickley, 240 A.3d 957 (Pa. 

Super. 2020) (where defense counsel attempted to introduce 

evidence of scientific studies at hearing on motion to bar 

application of SORNA, this Court remanded in accordance with 

Torsilieri for evidentiary proceedings on whether SORNA creates 

facially unconstitutional irrebuttable presumption against sexual 

offenders).

Id. at *4.

Again, we conclude Appellant’s first claim is governed by Asher. 

Accordingly, we vacate the order denying her post-sentence motion and 

remand for proceedings consistent with Torsilieri.

Appellant’s second claim on appeal is that SORNA’s registration 

requirements “are so onerous as to render them a punishment and violative 

of [the] 5th and 14th Amendments [to] the United States Constitution and 

Article 1 Section 1 of the Pennsylvania Constitution.” Appellant’s Brief at 17. 

In support, she presents the following arguments: in Commonwealth v. 

Muniz, 164 A.3d 1189 (Pa. 2017) (plurality), the Pennsylvania Supreme Court 

applied the Mendoza-Martinez factors and determined “SORNA’s 

registration provisions constitute punishment notwithstanding the General 

Assembly’s identification of the provisions as nonpunitive . . . .” Appellant’s 

Brief at 17, quoting Muniz, 164 A.3d at 1193 (opinion announcing the 

judgment of the court) (OAJC). Appellant reviews each Mendoza-Martinez

factor and argues the Act 10 amendments should likewise be found punitive 

in nature. Appellant’s Brief at 18-26. Pertinently, it was “the in-person 

reporting requirements [that] constituted the direct restraint upon the 
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registrant and under the Act 10 modification[,] that requirement still exists, 

[although] modified.” Id. at 19. Presently, “[t]he actual number of times 

that a lifetime registrant like [Appellant] will have to appear in person will vary 

but for the first 3 years[,] it will be at least 12 times with an additional 40 

times if she lives to be 78.” Id.

Pursuant to Mickley — cited in the Asher opinion — we conclude no 

relief is due. In Mickley, the defendant averred “the imposition of mandatory 

twenty-five (25)-year sex offender registration for all Tier II offenses under 

SORNA is a cruel and unusual punishment in violation of the Eighth and 

Fourteenth Amendments to the United States Constitution and Article I, 

Section 13 of the Pennsylvania Constitution.” Mickley, 240 A.3d at 960. This 

Court stated:

The Torsilieri Court did not reach the merits of any of the 

constitutional claims at issue, determining instead that the factual 

record was not sufficiently developed in the trial court. The Court 

concluded a remand was appropriate “to allow the parties to 

address whether a consensus has developed to call into question 

the relevant legislative policy decisions impacting offenders’

constitutional rights.” [Torsilieri, 232 A.3d at 587.]

Mickley, 240 A.3d at 962. The Mickey panel likewise remanded the case 

before it: “Here, despite defense counsel’s attempt [sic], no evidence was 

presented at the hearing on Mickley’s post-sentence motion. Thus, in 

accordance with Torsilieri, we vacate the order denying Mickley’s postsentence motion and remand for a hearing at which the parties can present 
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evidence for and against the relevant legislation determinations discussed 

above.” Id. at 963.

Although the defendant was a Tier II offender and was subject to a 25-

year registration term, and Appellant in this case is a Tier III offender and 

thus required to register for life, we conclude the discussion in Mickley is 

applicable. Thus, we do not reach the merits of Appellant’s constitutional 

challenge to lifetime registration requirements on cruel and unusual 

punishment grounds. Instead, on remand, the parties may present argument 

and evidence to the trial court on this issue.

For the foregoing reasons, we vacate the order denying Appellant’s postsentence motion and remand for a hearing at which the parties may present 

evidence for and against the relevant legislation determinations discussed 

above.

Judgment of sentence affirmed. Order denying Appellant’s postsentence motion vacated. Case remanded for proceedings consistent with this 

memorandum. Jurisdiction relinquished.

President Judge Emeritus Ford Elliott did not participate in the 

consideration or decision of this case.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/19/21