J-S42036-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

VERNON ADVONE CANTY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 702 EDA 2023

Appeal from the Judgment of Sentence Entered January 6, 2023

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

No(s): CP-23-CR-0001418-2021

BEFORE: BOWES, J., STABILE, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.: FILED MARCH 26, 2024

Appellant, Vernon Advone Canty, appeals from the January 6, 2023 

judgment of sentence entered in the Delaware County Court of Common Pleas

following his conviction of Rape—Threat of Forcible Compulsion, Involuntary 

Deviate Sexual Intercourse (“IDSI”), Sexual Assault, and False 

Imprisonment.1 Appellant challenges the denial of his motion to dismiss on 

double jeopardy grounds and the requirement that he register for his lifetime 

as a sex offender under Subchapter H of the Sexual Offender Registration and 

Notification Act (“SORNA”).2 After careful review, we affirm.

The relevant facts and procedural history are as follows. On July 26, 

2019, Appellant forced the then-17-year-old victim (“Victim”) into his car, 

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1 18 Pa.C.S. §§ 3121(a)(2), 3123(a)(2), 3124.1, and 2903(b), respectively.

2 42 Pa.C.S. §§ 9799.10-9799.42.
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drove her to the soccer stadium in Chester, Delaware County, and raped her. 

The following day, and as a result of the assault, the Victim went to the

hospital. Hospital personnel reported the assault to police. During the 

ensuing police investigation, the Victim identified Appellant as the perpetrator. 

When the police apprehended Appellant, he asserted, among other things, 

that he believed the Victim was not a minor and that the sex was consensual.

Appellant’s jury trial commenced on June 27, 2022. Immediately 

following jury selection, Appellant’s counsel became ill and substitute counsel 

assumed representation. Two days later, the jury convicted Appellant of 

multiple offenses and acquitted him of Kidnapping and Terroristic Threats. 

On October 12, 2022, Appellant’s counsel filed a sentencing 

memorandum and a “Motion to Dismiss for Prosecutorial Misconduct on 

Grounds of Double Jeopardy” (“Motion to Dismiss”). In the motion, Appellant 

alleged that, following trial, he learned that the Commonwealth had failed to 

disclose the Victim’s criminal history, which included a crimen falsi conviction.3 

He argued that, had the jury been made aware of the Victim’s prior 

convictions, “it would have impacted their assessment of credibility for telling 

the truth.” Supplemental Memorandum of Law in Support of Motion to 

Dismiss, 10/20/22, at 7. Appellant concluded that the Commonwealth’s 

conduct consisted of prosecutorial misconduct and deprived Appellant of his 

right to a fair trial and, therefore, irrespective of whether the Commonwealth’s

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3

In particular, Appellant claimed that the Victim had been convicted of 

Robbery, Kidnapping, and Aggravated Assault.
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omission was intentional or recklessly negligent, he was entitled to dismissal 

of the case against him with prejudice.

On October 21, 2022, the trial court held a hearing on Appellant’s Motion 

to Dismiss at which Appellant also made an oral motion for extraordinary relief 

pursuant to Pa.R.Crim.P. 704(B)(1).4 After considering the argument set forth 

by the parties, the court denied Appellant’s Motion to Dismiss, but granted his 

oral motion for a new trial. Relevant to the instant appeal, the court granted 

Appellant’s request for a new trial after finding that the Commonwealth had 

unintentionally failed to provide Appellant with the Victim’s criminal history, 

including the crimen falsi conviction, and concluding that because Appellant’s 

counsel became ill immediately before jury selection, counsel who had

assumed representation was not fully prepared for trial.

Appellant’s new trial began on November 29, 2022. On December 1, 

2022, the jury convicted Appellant of the above crimes. The verdict sheet did 

not reference any offense date or dates.

On January 6, 2023, the trial court sentenced Appellant to a term of 71⁄2 

to 15 years of incarceration followed by eight years of probation. The court 

also ordered Appellant to register for his lifetime as a Tier III sexual offender.

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4 Rule 704(B)(1) provides that “[u]nder extraordinary circumstances, when 

the interests of justice require, the trial judge may, before sentencing, hear 

an oral motion in arrest of judgment, for a judgment of acquittal, or for a new 

trial.” Pa.R.Crim.P. 704(B)(1).
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On January 17, 2023, Appellant’s counsel filed a post-sentence motion 

challenging the weight of the evidence.

5

 That same day, the trial court 

entered an order appointing the Delaware County Office of the Public Defender 

to represent Appellant and extending the deadline to file a post-sentence 

motion to January 27, 2023.6

On January 20, 2023, appointed counsel filed an application to 

supplement the post-sentence motion filed by Appellant’s former counsel, 

which the trial court granted on January 24, 2023. Two days later, on January 

26, 2023, counsel filed a supplemental post-trial motion in which she 

reasserted Appellant’s weight of the evidence claim and raised a challenge to 

the discretionary aspects of his sentence. Counsel also asserted that SORNA 

is unconstitutional and requested that the court stay Appellant’s registration 

requirement pending the Pennsylvania Supreme Court’s decision in 

Commonwealth v. Torsilieri, 97 MAP 2022.7 

On February 10, 2023, the trial court entered an order granting in part 

and denying in part Appellant’s post-sentence motion. In particular, the court 

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5 The 10th day after judgment of sentence was Monday, January 16, 2023, 

which was Martin Luther King, Jr. Day. Accordingly, we deem Appellant’s postsentence motion, filed on Tuesday, January 17, 2023, timely.

6 The docket does not reflect that Appellant’s counsel had requested leave to 

withdraw nor that the trial court had granted counsel such leave.

7 The Pennsylvania Supreme Court is currently considering the punitive nature 

and constitutionality of Subchapter H’s registration requirements following 

remand to the trial court ordered in Commonwealth v. Torsilieri, 232 A.3d 

567 (Pa. 2020).
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denied Appellant’s weight of the evidence and discretionary aspects of 

sentencing claims but stayed his SORNA registration pending resolution of 

Torsilieri.

This appeal followed. Both Appellant and the trial court complied with 

Pa.R.A.P. 1925.

Appellant raises the following two issues on appeal:

1. Whether the trial court erred in denying Appellant’s motion to 

dismiss with prejudice on double jeopardy grounds, where the 

prosecution violated its discovery obligations and failed to 

timely disclose exculpatory impeachment evidence regarding 

the [Victim’s] criminal history, including violent crimen falsi

convictions?

2. Whether the sentencing court’s imposition of sexual offender 

registration is illegal and Appellant is entitled to less restrictive 

Subchapter I requirement, since the jury never made any 

offense date findings, and in any event, Subchapter H’s more 

restrictive provisions are unconstitutional?

Appellant’s Brief at 5.

A.

In his first issue, Appellant claims that the trial court erred in denying 

his Motion to Dismiss. Id. at 14-18. He asserts that the Commonwealth 

committed prosecutorial misconduct by intentionally withholding evidence of 

the Victim’s prior crimen falsi conviction and, thus, depriving him of a fair trial. 

Id. at 17-18. In the alternative, he claims that the Commonwealth “recklessly 

disregarded [Appellant’s] right to a fair trial by waiting until moments before 

the first jury selection, at the earliest, to disclose critical impeachment 

evidence.” Id. at 18. He argues that, because this case pitted his credibility 
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against that of the Victim, the Commonwealth deprived him of his “right to 

attack the [Victim’s] truthfulness with compelling evidence of her prior 

convictions involving violence and dishonesty.” Id.

An appeal grounded in double jeopardy raises a question of 

constitutional law over which our standard of review is de novo.

Commonwealth v. Sanchez, 262 A.3d 1283, 1288 (Pa. Super. 2021) 

To the extent that the factual findings of the trial court impact its double 

jeopardy ruling, we apply a more deferential standard of review to those 

findings.

Where issues of credibility and weight of the evidence are 

concerned, it is not the function of the appellate court to substitute 

its judgment based on a cold record for that of the trial court. The 

weight to be accorded conflicting evidence is exclusively for the 

fact finder, whose findings will not be disturbed on appeal if they 

are supported by the record.

Id. (citations omitted).

“[T]he double jeopardy clause prohibits the Commonwealth from 

punishing an accused twice for the same offense.” Commonwealth v. 

Robinson, 166 A.3d 1272, 1276 (Pa. Super. 2017) (internal quotation marks 

and citation omitted). Under the Pennsylvania constitution, double jeopardy 

bars retrial where the prosecutor’s misconduct was intended to provoke the 

defendant into moving for a mistrial or where the prosecutor intentionally or 

recklessly undertakes his conduct to prejudice the defendant to the point of 

the denial of a fair trial. Commonwealth v. Johnson, 231 A.3d 807, 826 

(Pa. 2020). 
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To trigger double jeopardy, “the defendant must show that the 

prosecutor intentionally withheld [exculpatory] information in an attempt to 

deprive the defendant of a fair trial,” Commonwealth v. Lynn, 192 A.3d 194, 

200 (Pa. Super. 2018) (emphasis changed), or consciously disregarded a 

substantial risk of that result. Johnson, 231 A.3d at 826. Where there is no 

such evidence, “the proper remedy for the Commonwealth’s failure to disclose 

exculpatory materials should be less than dismissal.” Commonwealth v. 

Burke, 781 A.2d 1136, 1146 (Pa. 2001).

Here, the trial court found that Appellant failed to meet his burden to 

show that the Commonwealth intentionally withheld exculpatory evidence in 

order to deprive Appellant of a fair trial or consciously disregarded a 

substantial risk of that result. Instead, the court concluded that the 

Commonwealth’s omission was “unintentional and an oversight” and that 

“[n]othing in the record indicates malicious prosecutorial misconduct designed 

to provoke Appellant into requesting a retrial.” Trial Ct. Op. at 9. The court 

further concluded that the Commonwealth’s omission “clearly” did not rise to 

“a fundamental breakdown of the judicial process, requiring a dismissal on 

double jeopardy grounds.” Id.

Following our review of the record, including the notes of testimony from 

the October 21, 2022 hearing on the Motion to Dismiss, we conclude that the 

record supports the trial court’s conclusion that Appellant did not demonstrate 
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that the Commonwealth acted intentionally or with malicious prosecutorial 

disregard.

8

 

Moreover, we will not substitute our judgment with respect to the court’s 

credibility and weight of the evidence determinations. Appellant merely 

presented evidence that the Commonwealth failed to provide him with 

information about the Victim’s crimen falsi conviction, not that the 

Commonwealth did so intentionally. Appellant argues that we should infer

that the Commonwealth acted intentionally or with malicious prosecutorial 

disregard in failing to provide the information. We decline to do so as no legal 

authority permits such an inference. Since Appellant failed to establish that 

the Commonwealth withheld the information intentionally or with malicious 

prosecutorial disregard, the trial court properly denied his Motion to Dismiss

and provided the proper remedy of a new trial. Accordingly, following our de 

novo review of Appellant’s constitutional claim that double jeopardy principles 

precluded his retrial, we conclude that it lacks merit.9 

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8

In fact, the notes of testimony reflect that Appellant presented no evidence 

whatsoever pertaining to the reasons for the Commonwealth’s conduct or 

omissions. The only evidence adduced at that hearing concerned Appellant’s 

oral motion for arrest of judgment. See N.T. Hr’g, 10/21/22, at 4 (where 

Appellant’s primary trial counsel, Attorney Clinton Johnson, confirmed that 

“there was information when [he] took ill that was not conveyed to [substitute 

trial counsel] Mr. Raynor[.]).

9 Appellant’s alternate claim that the Commonwealth “recklessly disregarded 

[his] right to a fair trial by waiting until moments before the first jury selection, 

at the earliest, to disclose critical impeachment evidence,” Appellant’s Brief at 

18, is waived as our review of the record indicates that he has raised this 

(Footnote Continued Next Page)
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B.

I.

In his next issue, Appellant claims that the trial court erred in requiring 

him to register as a sex offender pursuant to Subchapter H of SORNA instead 

of pursuant to Subchapter I because the jury did not make a specific finding

as to the date of the rape perpetrated by Appellant. Appellant’s Brief at 19-

21. He concludes, therefore, that this Court must vacate the order directing 

Appellant to register pursuant to Subchapter H and direct Subchapter I 

registration, even if Appellant’s committed his crimes after 2012. Id. at 21. 

In the alternative, Appellant argues that even if the jury’s verdict supports the 

imposition of Subchapter H registration, Subchapter H is unconstitutional. Id.

at 21-26.

Appellant’s issue raises a question of law. Commonwealth v. Bricker, 

198 A.3d 371, 375 (Pa. Super. 2018). A challenge to the legality of a sentence 

presents a question of law for which “our standard of review is de novo and 

our scope of review is plenary.” Commonwealth v. Alston, 212 A.3d 526, 

528 (Pa. Super. 2019).

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specific claim for the first time on appeal. Pa.R.A.P. 302(a) (“Issues not raised 

in the trial court are waived and cannot be raised for the first time on 

appeal.”); see also Commonwealth v. Gordon, 528 A.2d 631, 638 (Pa. 

Super. 1987) (“A theory of error different from that presented to the trial jurist 

is waived on appeal, even if both theories support the same basic allegation 

of error which gives rise to the claim for relief.”).
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The General Assembly enacted SORNA II in response to our Supreme 

Court’s determinations that aspects of SORNA I were unconstitutional. 42 

Pa.C.S. § 9799.51(b)(4) (citing Commonwealth v. Muniz, 164 A.3d 1189 

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

(“Butler I”)).

10

 Relevant to Appellant’s claims, the General Assembly revised 

Subchapter H, 42 Pa.C.S. §§ 9799.10-9799.42, to apply only to individuals 

who committed a sexually violent offense on or after December 20, 2012. Id.

§ 9799.12 (defining “sexually violent offense”). It also added Subchapter I, 

id. §§ 9799.51-9799.75, to address those who committed designated offenses 

prior to December 20, 2012, if the offender was subject to registration 

requirements on that date. Id. § 9799.52. The registration requirements of 

Subchapter H, which are based on SORNA I, are more onerous than those 

under Subchapter I. See Commonwealth v. Lacombe, 234 A.3d 602, 607 

n.4, 626 (Pa. 2020) (declaring the Subchapter I registration requirements to 

be non-punitive).

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10 In Muniz, the Supreme Court held “that SORNA [I]’s registration 

requirements constituted punishment and their retroactive application

constituted a violation of the constitutional prohibition against ex post facto 

laws.” Commonwealth v. Lacombe, 234 A.3d 602, 615 (Pa. 2020) (citation 

omitted).

In Butler I, this Court held that SORNA I’s SVP designation process was 

unconstitutional. Butler I, 173 A.3d at 1217-18. The Supreme Court 

subsequently overturned this holding in Commonwealth v. Butler, 226 A.3d 

972, 976 (Pa. 2020) (“Butler II”), concluding that the SVP requirements did 

not constitute criminal punishment and thus were not subject to the 

constitutional protections considered in Butler I.
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Here, it is undisputed that the crimes with which the Commonwealth 

charged Appellant occurred on July 26, 2019, well after the date triggering 

the application of Subchapter H. Nevertheless, Appellant argues that the trial 

court should have applied Subchapter I because the jury did not make a 

specific finding regarding the date of the offence. In support, he relies on 

Alston, as well as Apprendi v. New Jersey, 530 U.S. 466 (2000), and 

Alleyne v. United States, 570 U.S. 99 (2013). This argument merits no 

relief.

Apprendi and Alleyne both stand for the proposition that any fact that 

increases the penalty for a mandatory minimum is an element that must be 

submitted to the jury. Appellant’s argument, thus, relies on the flawed 

presumption that Subchapter H’s registration requirements are punitive. To 

date, no Pennsylvania appellate court has held that revised Subchapter H is 

punitive. See, e.g., Commonwealth v. Thorne, 276 A.3d 1192, 1198 (Pa. 

2022) (“The question of whether the lifetime registration requirement of 

Revised Subchapter H is punitive in nature . . . currently remains open.”);

Commonwealth v. Wolf, 276 A.3d 805, 813 (Pa. Super. 2022) (upholding

Wolf’s registration requirements, despite his argument that Revised

Subchapter H is punitive.). Accordingly, since Appellant has not shown that 

Revised Subchapter H is punitive, the jury was not required to make a specific 

finding as to the date of the offense in order for the court to apply it. See 

Butler, 226 A.3d at 993 (explaining that Alleyne and Apprendi do not apply 

if registration requirements are non-punitive). 
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Further, Appellant’s reliance on Alston in support of his claim that “if 

the factfinder’s verdict form does not make offense date findings, Subchapter 

I controls[,]” Appellant’s Brief at 20, is misplaced. In Alston, unlike in the 

instant case, the defendant’s crimes straddled the operative dates of 

Subchapter I and Subchapter H. Nevertheless, the jury did not specifically 

determine when the defendant committed the offenses. The Alston Court, 

therefore, concluded that Subchapter I applied. Here, Appellant does not 

argue that the offense date straddles the operative dates of Subchapters I and 

H, and there is no question that the jury convicted Appellant of offenses 

alleged to have occurred on only one date—July 26, 2019. Because the 

offense date did not straddle the effective dates of Subchapter I and 

Subchapter H, Alston does not apply. Appellant’s claim that the court should 

have ordered him to register pursuant to Subchapter I rather than Subchapter 

H, thus, fails.

II.

Appellant also argues, in the alternative, that even if the jury’s verdict 

supports the imposition of Subchapter H registration, Subchapter H is 

unconstitutional. In support of this claim, Appellant “makes the same claims 

as in Torsilieri concerning the constitutionality of Subchapter H.” Appellant’s 

Brief at 24.

Briefly, in 2020 the Pennsylvania Supreme Court vacated a trial court 

order finding Revised Subchapter H unconstitutional. Torsilieri, 232 A.3d 

567, 596 (Pa. 2020). In that case, while the Court found that Torsilieri 
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“presented a colorable argument” that the presumptions underpinning 

Revised Subchapter H had “been undermined by recent scientific studies,”11

the Court concluded that the record before it did not “demonstrate a 

consensus of scientific evidence” refuting the core presumptions, “nor the 

clearest proof needed to overturn the General Assembly’s statements that the 

provisions are not punitive[.]” Id. at 594 (internal citation and quotation 

marks omitted). Because “the Commonwealth’s tactics” in that case had 

“potentially prevented the necessary development of the record,” the Court 

remanded the case to give the parties a second chance to present evidence. 

Id. at 595.

Since the Supreme Court issued its decision remanding Torsilieri, this 

Court has rejected challenges to Revised Subchapter H that did not present 

the “clearest proof” Torsilieri demands. See, e.g., Wolf, 276 A.3d at 813 

(rejecting an argument that Revised Subchapter H is unconstitutional and 

affirming the judgment of sentence where the appellant had “presented no 

evidence, whatsoever” to meet his burden). Here, Appellant similarly 

presented no evidence to support his constitutional challenges to Subchapter 

H. Accordingly, Appellant’s challenges to Subchapter H do not merit relief.

Judgment of sentence affirmed.

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11 Specifically, the presumptions that: (1) “all sexual offenders pose a high 

risk of recidivism”; and (2) “the tier-based registration system of Revised 

Subchapter H protects the public” from that risk. Torsilieri, 232 A.3d at 594.
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Date: 3/26/2024