J-S32012-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JUSTIN CRUZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3040 EDA 2019

Appeal from the Judgment of Sentence Entered July 17, 2019

In the Court of Common Pleas of Monroe County Criminal Division at 

No(s): CP-45-CR-0000433-2018

BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: Filed: January 13, 2021

Appellant, Justin Cruz, appeals from the aggregate judgment of 

sentence of 111⁄2 to 23 months of confinement, which was imposed after he 

pleaded nolo contendere to indecent assault without consent of other.1 After 

careful review, we vacate the order denying Appellant’s post-sentence motion 

and remand for a hearing on his post-sentence motion, at which, inter alia, 

the parties may present evidence for and against the relevant legislative

determinations discussed below. We affirm in all other respects.

At Appellant’s plea hearing, the following facts were read into the 

record:

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 3126(a)(1).
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[T]he complainant in this case was the sister of [Appellant’s] 

girlfriend. He was living in the house with the sister, the girlfriend, 

and . . . their parents.

And on the evening in question,[

2] he and the girlfriend’s sister --

the girlfriend was not at home -- they were playing these games 

and they were drinking. They both drank. And the allegation was 

that he had contact with her without consent because she woke 

up the next day and found a prophylactic. He, on the other hand, 

had maintained that there was consent . . . and was quite open 

with the police concerning what happened. She contested that.

N.T. at 17.

At sentencing, in addition to serving the above-referenced period of 

incarceration, Appellant was ordered to register for 15 years pursuant to the 

Sex Offender Registration and Notification Act (“SORNA”).

3

 On July 26, 2019, 

he filed a post-sentence motion that included a request for a hearing. On 

July 29, 2019, the trial court denied Appellant’s hearing request and ordered 

that the post-sentence motion be argued on briefs.

On September 11, 2019, Appellant filed his brief in support of his postsentence motion, contending that SORNA “violates his right to reputation 

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2 According to the Information, the assault occurred on January 19, 2018.

3 42 Pa.C.S. §§ 9799.10-9799.42. The General Assembly amended SORNA 

on February 21, 2018, by passing Act 10 of 2018, which was immediately 

effective. See P.L. 27, No. 10, §§ 1-20. “Act 10 split SORNA, which was 

previously designated in the Sentencing Code as Subchapter H, into two 

subchapters. Revised Subchapter H applies to crimes committed on or after 

December 20, 2012, whereas Subchapter I applies to crimes committed after 

April 22, 1996, but before December 20, 2012.” Commonwealth v. 

Torsilieri, 232 A.3d 567, 580 (Pa. 2020). As the crime in the current appeal 

occurred after December 20, 2012, only Subchapter H applies.
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under the Pennsylvania Constitution”4 and that he should be given a 

“meaningful opportunity to challenge the presumption of dangerousness” 

ingrained in SORNA, noting that the Supreme Court of Pennsylvania “has held 

that the degree of restraint imposed by similar laws demands meaningful predeprivation hearings.” Appellant’s Brief in Support of His Post-Sentence 

Motion to Declare SORNA Unconstitutional, 9/11/2019, at 2, 14 (not 

paginated) §§ A.1., A.2.c. (citing Commonwealth v. Maldonado, 838 A.2d 

710, 714-18 (Pa. 2003) (sexually violent predator status cannot be imposed 

without a hearing due to the “substantial imposition upon [] liberty 

interests”)). The motion continues that SORNA “denied procedural due 

processed[,]” because the “[l]egislature expressly dictates that the 

determination of which convictions trigger inclusion is based upon an 

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4 According to Article I, Sections 1 and 11 of the Pennsylvania Constitution:

All men are born equally free and independent, and have certain 

inherent and indefeasible rights, among which are those of 

enjoying and defending life and liberty, of acquiring, possessing 

and protecting property and reputation, and of pursuing their 

own happiness. . . .

All courts shall be open; and every man for an injury done him in 

his lands, goods, person or reputation shall have remedy by due 

course of law, and right and justice administered without sale, 

denial or delay.

PA. CONST. art. I, §§ 1, 11 (emphasis added).
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automatic presumption of future danger[.]” Id. at 15-16 § A.3. (citing 42 

Pa.C.S. § 9799.11(a)(4)5).

The post-sentence motion also argued that SORNA is punitive and 

questioned whether it “is rationally related to the intended goal . . . of 

protecting the safety and general welfare of the citizen . . . from ‘high risk’ 

recidivists” given the “contrary scientific studies” on the rate of recidivism 

among sexual offenders. Id. at 17, 19 § II6 (citing 42 Pa.C.S. 

§ 9799.11(b)(1);

7 Commonwealth v. Muniz, 164 A.3d 1189, 1216-17 (Pa. 

2017) (plurality)).

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5 SORNA’s legislative findings state: “Sexual offenders pose a high risk of 

committing additional sexual offenses and protection of the public from this 

type of offender is a paramount governmental interest.” 42 Pa.C.S. 

§ 9799.11(a)(4).

6 The first section of Appellant’s brief in support of his post-sentence motion 

is labelled “A.” and the second section is labelled “II.”

7 SORNA’s declaration of policy states:

It is the intention of the General Assembly to substantially comply 

with the Adam Walsh Child Protection and Safety Act of 2006 and 

to further protect the safety and general welfare of the 

citizens of this Commonwealth by providing for increased 

regulation of sexual offenders, specifically as that regulation 

relates to registration of sexual offenders and community 

notification about sexual offenders.

Id. § 9799.11(b)(1) (emphasis added).
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On September 16, 2019, the trial court denied the post-sentence 

motion. On October 15, 2019, Appellant filed this timely direct appeal.8

Appellant presents the following issues for our review:

1. Does registration under Act 29[

9] violate substantive due

process under Article 11 [sic] of the Pennsylvania Constitution 

because it deprives individuals of the fundamental right to 

reputation and fails to satisfy strict scrutiny?

2. Does registration under Act 29 deny [Appellant] due process 

under Articles 1 and 11 [sic] of the Pennsylvania Constitution

because it creates an irrebuttable presumption that those

convicted of enumerated offenses “pose a high risk of committing

additional sexual offenses” depriving those individuals of their

fundamental right to reputation?

3. Does registration under Act 29 deny [Appellant] procedural 

due process under the Pennsylvania and Federal Constitutions 

because it unlawfully impinges the right to reputation without 

notice and an opportunity to be heard?

4. Does registration under Act 29 constitute criminal

punishment and therefore violate the separation of powers

doctrine because it usurps exclusive judicial adjudicatory and

sentencing authority?

5. If registration under Act 29 is punishment, does the

imposition of mandatory sex offender registration for the instant

offense constitute cruel and unusual punishment in violation of the 

Eighth and Fourteenth Amendments to the United States

Constitution and Article 1, Section 13 of the Pennsylvania

Constitution?

6. If registration under Act 29 is punishment, does it

contravene the 5th, 6th and 14th Amendments of the United States

Constitution and the corresponding protections of the

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8 Appellant filed his statement of errors complained of on appeal on 

November 5, 2019. The trial court entered its opinion on November 8, 2019.

9 On June 12, 2018, the General Assembly passed Act 29 of 2018, re-enacting 

and amending SORNA; it was immediately effective. See P.L. 140, No. 29, 

§§ 1-23.
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Pennsylvania Constitution because not every fact necessary to

support the imposition of a mandatory minimum sentence must

be found by a jury beyond a reasonable doubt?

Appellant’s Brief at 4-5.

During the pendency of Appellant’s appeal, the Supreme Court of 

Pennsylvania decided Commonwealth v. Torsilieri, 232 A.3d 567 (Pa. 

2020). Appellant’s claims on appeal are identical to those raised in Torsilieri. 

Id. at 585-88. In particular, Appellant’s first three SORNA-related challenges 

claim that SORNA deprives him of procedural due process, because SORNA 

creates an irrebuttable presumption of recidivism,10 consequently depriving 

him of his right to his reputation11 without notice and an opportunity to be 

heard. Appellant’s Brief at 4 ¶¶ 1-3 & at 11-37.

In Torsilieri, 232 A.3d 567, our Pennsylvania Supreme 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. 

See also Commonwealth v. Mickley, 240 A.3d 957, 962 (Pa. Super. 2020). 

The Pennsylvania Supreme Court concluded that 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’ 

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10 See 42 Pa.C.S. § 9799.11(a)(4).

11 See PA. CONST. art. I, §§ 1, 11.
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constitutional rights.” Torsilieri, 232 A.3d at 585; see also Mickley, 240 

A.3d at 962. Our Supreme Court continued:

We recognize that the . . . parties relied upon our recent statement 

in Muniz, rejecting [ ] expert evidence calling into question the 

legislature’s assessment of sexual offender recidivism risks and 

the effectiveness of tier-based registration systems. In light of 

this reliance, we emphasize that all cases are evaluated on the 

record created in the individual case. Thus, a court need not 

ignore new scientific evidence merely because a litigant in a prior 

case provided less convincing evidence. Indeed, this Court will 

not turn a blind eye to the development of scientific 

research, especially where such evidence would 

demonstrate infringement of constitutional rights. 

Nevertheless, we also emphasize that it will be the rare situation 

where a court would reevaluate a legislative policy determination, 

which can only be justified in a case involving the infringement of 

constitutional rights and a consensus of scientific evidence 

undermining the legislative determination. We reiterate that while 

courts are empowered to enforce constitutional rights, they should 

remain mindful that the wisdom of a public policy is one for the 

legislature, and the General Assembly’s enactments are entitled 

to a strong presumption of constitutionality rebuttable only by a 

demonstration that they clearly, plainly, and palpably violate 

constitutional requirements. . . . Accordingly, we conclude that the 

proper remedy is to remand to the trial court to provide both 

parties an opportunity to develop arguments and present 

additional evidence and to allow the trial court to weigh that 

evidence in determining whether [the Commonwealth] has 

refuted the relevant legislative findings supporting the challenged 

registration and notification provisions of Revised Subchapter H.

Torsilieri, 232 A.3d at 595-96 (emphasis added) (internal citation and 

quotation marks omitted); see also Mickley, 240 A.3d at 962-63.

In the current action, despite Appellant’s request for a hearing to offer 

evidence on the presumption of dangerousness and whether SORNA is 

rationally related to its intended goal, no evidence was presented on his postsentence motion. Accordingly, pursuant to Torsilieri, we vacate the order 
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denying Appellant’s post-sentence motion and remand for a hearing at which 

the parties can present evidence for and against the relevant legislative 

determinations discussed above.12

Order denying post-sentence motion vacated. Judgment of sentence 

affirmed in all other respects. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/13/21

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12 As we vacate for the above reasons, we need not reach Appellant’s 

additional claims arguing that SORNA is punitive. See Appellant’s Brief at 4-

5 ¶¶ 4-5 & at 37-66. We note that, during the pendency of this appeal, the 

Supreme Court decided Commonwealth v. Lacombe, 234 A.3d 602, 626 

(Pa. 2020), holding that “Subchapter I does not constitute criminal 

punishment[.]” However, Appellant’s registration requirements are controlled 

by Subchapter H, not Subchapter I, and Lacombe hence is inapplicable to the 

current matter.