J-S33022-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TYLER LABAR 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3412 EDA 2019

Appeal from the Judgment of Sentence Entered August 1, 2019

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

No(s): CP-45-CR-0000369-2018

BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MURRAY, J.: FILED JANUARY 5, 2021

Tyler Labar (Appellant) appeals from the judgment of sentence imposed 

after he pled guilty to strangulation and indecent assault without 

complainant’s consent.1 On appeal, Appellant challenges the constitutionality 

of his classification as a Tier I sex offender under Pennsylvania’s Sex Offender 

Registration and Notification Act (SORNA),

2 and the requirement that he 

register as a sex offender for 15 years. Upon review, we vacate and remand.

Appellant’s convictions arose from a sexual assault that occurred on 

January 26, 2018. Appellant sexually assaulted the victim after a night of 

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*

 Former Justice specially assigned to the Superior Court.

1

 18 Pa.C.S.A. §§ 2718(a), 3126(a)(1).

2

 42 Pa.C.S.A. §§ 9799.10–9799.41.
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drinking. He was charged with the above crimes and on April 1, 2019, entered 

a guilty plea. On August 1, 2019, the trial court sentenced Appellant to 248

days to 24 months less 1 day of incarceration, followed by two years of 

probation. Because Appellant had already served the minimum portion of his 

sentence, he was immediately paroled. The trial court also classified Appellant 

as a Tier I sex offender under SORNA, subjecting him to a 15-year registration

and reporting period.

On August 7, 2019, Appellant filed a post-sentence motion raising the 

Chester County Court of Common Pleas decision in Commonwealth v. 

Torsilieri, and seeking, inter alia, modification of his sentence to remove the 

requirement that he register as a Tier I sex offender for 15 years. Appellant 

argued that Subchapter H of SORNA was unconstitutional. On October 25, 

2019, the trial court, without holding a hearing, denied Appellant’s postsentence motion. The court stated:

This appeal questions the constitutionality of SORNA, based on

the Chester County Court of Common Pleas’ decision in 

Commonwealth v. Torsilieri, 15 CR 1570 2016 (Pa. Comm. 

Pls. 2016). Torsilieri is now pending on appeal to the 

Pennsylvania Supreme Court. See 37 MAP 2018 (Pa. 2018). 

Following acceptance of the appeal, an en banc panel of this Court 

considered similar arguments and upheld SORNA as facially 

constitutional. Commonwealth v. Tomsic, 1517 CR 2016 (Aug. 

19, 2019) (en banc) (amended order). We therefore rely on that 

decision while we await the Pennsylvania Supreme Court’s ruling.
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Trial Court Opinion, 1/14/20, at 1-2. This timely appeal followed.3

Appellant presents the following issues for review:

I. Whether SORNA is overbroad and violates Appellant’s Due 

Process rights afforded him under the United States and 

Pennsylvania Constitutions.

II. Whether SORNA’s registration requirements, as applied to 

Appellant by the trial court, constitute criminal punishment 

without an opportunity to challenge its imposition.

III. Whether SORNA violates [Appellant]’s fundamental right to 

reputation afforded him under the Pennsylvania Constitution.

Appellant’s Brief at 8.

Appellant challenges the constitutionality of Subchapter H. Appellant 

relies on the Chester County Court of Common Pleas decision in Torsilieri, 

supra, which held that Subchapter H of SORNA was unconstitutional. At the 

time Appellant filed his brief with this Court, the Torsilieri decision was 

pending before the Pennsylvania Supreme Court. On June 16, 2020, the

Supreme Court issued its decision.

A jury convicted Torsilieri of aggravated indecent assault, 18 Pa.C.S.A. 

§ 3125(a)(1), and indecent assault, 18 Pa.C.S.A. § 3126(a)(1). 

Commonwealth v. Torsilieri, 232 A.3d 567, 572 (Pa. 2020). The trial court 

sentenced Torsilieri to an aggregate term of one year less one day to two 

years less one day of incarceration, followed by three years of probation. Id.

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3

 Both the trial court and Appellant have complied with Pennsylvania Rule of 

Appellate Procedure 1925.
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at 573. Additionally, Torsilieri’s aggravated indecent assault conviction 

rendered him a Tier III sex offender under Subchapter H of SORNA, subject

to lifetime registration and reporting requirements. Id. (citing 42 Pa.C.S.A. § 

9799.14 (d)(7)).

Following post-sentence motions in which Torsilieri challenged the 

constitutionality of Subchapter H of SORNA, the trial court determined:

[T]he registration and notification provisions of Revised 

Subchapter H violated [Torsilieri’s] right to due process by 

impairing his right to reputation, as protected by the Pennsylvania 

Constitution, through the utilization of an irrebuttable 

presumption. The court also concluded that the statute violated 

his right to due process under the United States and Pennsylvania 

Constitutions because the statutory system failed to provide the 

requisite notice and opportunity to be heard. It also concluded 

that Revised Subchapter H violated the separation of powers 

doctrine because the General Assembly’s enactment of Revised 

Subchapter H essentially removed the trial court’s ability to 

fashion an individualized sentence. Finally, the court held that the 

statute violated Alleyne[4] and Apprendi[5] 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 

doubt.” Tr. Ct. Order, July 10, 2018, at 3. The court, therefore, 

vacated [Torsilieri]’s sentence to the extent it required him to 

comply with Revised Subchapter H’s sexual offender registration 

provisions.

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4

 Alleyne v. United States, 570 U.S. 99 (2013) (holding that any fact that 

increases the mandatory minimum sentence for a crime is a fact that must be 

submitted to the jury and found beyond a reasonable doubt).

5

 Apprendi v. New Jersey, 530 U.S. 466 (2013) (concluding that other than 

a prior conviction, any fact that increases the penalty for a crime beyond the 

statutory maximum must be submitted to a jury, and proved beyond a 

reasonable doubt).
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Torsilieri, 232 A.3d at 574.

The Commonwealth filed a direct appeal to the Pennsylvania Supreme 

Court, invoking the Supreme Court’s jurisdiction over decisions from the 

Courts of Common Pleas declaring statutes unconstitutional, pursuant to 42 

Pa.C.S.A. § 722(7). Id.

Upon review, the Supreme Court in Torsilieri recognized two broad 

categories in the trial court’s conclusions:

First, the court held that Revised Subchapter H violates 

Pennsylvania’s due process protections through the 

unconstitutional use of an irrebuttable presumption [that sex 

offenders have a high risk of recidivation]. The trial court 

considered this holding as implicating both procedural and 

substantive due process protections. . . .

Second, the trial court held that Revised Subchapter H’s 

registration and notification provisions are punitive in nature such 

that they must comply with all constitutional and statutory 

protections applicable to sentencing. Based on the 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 recidivation, violated (1) the 

requirements of Apprendi and Alleyne, (2) imposed sentences 

in excess of the statutory maximum sentence, (3) constituted 

cruel and unusual punishment, and (4) violated the separation of 

powers doctrines by preventing trial courts from imposing 

individualized sentences.

Id. at 581-82.

The Supreme Court further explained:

It is abundantly clear that the trial court’s various declarations 

of Revised Subchapter H’s registration and notification provisions 

as unconstitutional derived directly from the court’s acceptance of 

and reliance upon [Torsilieri’s] experts’ evidence challenging the 

legislative determinations underpinning Revised Subchapter H, 

specifically (1) that all sexual offenders pose a high risk of 
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recidivation and (2) that the tier-based registration system of 

Revised Subchapter H protects the public from the alleged danger 

of recidivist sexual offenders.

Unfortunately, the procedural posture of this case prevents tidy 

resolution of the matter by this Court. While [Torsilieri] presented 

a colorable argument that the General Assembly’s factual 

presumptions have been undermined by recent scientific studies, 

we are unable to affirm the trial court’s several conclusions finding 

Revised Subchapter H unconstitutional. We note that the 

evidence of record does not demonstrate a consensus of scientific 

evidence . . ., nor the “clearest proof” needed to overturn the 

General Assembly’s statements that the provisions are not

punitive, which we have noted requires more than merely showing 

disagreement among relevant authorities[.] We hesitate to find 

these standards met by the stipulated admission of three experts’ 

affidavits, without an opportunity to weigh this evidence against 

contrary evidence, if any exists.

* * *

As is apparent from the trial court findings, the evidence 

presented by [Torsilieri] provides a colorable argument to debunk 

the settled view of sexual offender recidivation rates and the 

effectiveness of tier-based sexual offender registration systems 

underlying the General Assembly’s findings as well as various 

decisions of this Court and the United States Supreme Court. 

Nevertheless, as the trial court did not have the benefit of the 

opposing science, if any, the evidence currently in the record does 

not provide a sufficient basis to overturn the legislative 

determination. 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 [Torsilieri] has refuted the relevant legislative findings 

supporting the challenged registration and notification provisions 

of Revised Subchapter H.

Accordingly, we vacate that portion of the trial court’s order 

declaring the registration requirements of Revised Subchapter H 

of SORNA unconstitutional and remand for further proceedings in 

accordance with this opinion.

Id. at 594-96 (footnote, citations, and quotations omitted).
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Thus, the Supreme Court determined that the trial court, in declaring

Subchapter H’s registration and reporting requirements unconstitutional, 

relied on Torsilieri’s experts’ evidence challenging the legislative 

determinations underpinning Revised Subchapter H. Id. at 596. The Court 

stated that Torsilieri presented a “colorable argument to debunk” the General 

Assembly’s presumptions regarding sex offender recidivism and the 

effectiveness of tier-based sex offender registration systems. Id. 

Nonetheless, the Court sought further development of the evidence relating 

to the General Assembly’s presumption in order to determine if there was a 

“consensus of scientific evidence . . . to find [the] presumption not universally 

true[.]” Id. Accordingly, the Supreme Court concluded that the appropriate 

course was to remand the case to the trial court to provide both parties the

opportunity to present additional evidence and to allow the trial court to weigh 

that evidence in determining whether Torsilieri refuted the legislative 

underpinnings of Subchapter H. Id.

A panel of this Court subsequently applied Torsilieri in 

Commonwealth v. Mickley, 240 A.3d 957, 963 (Pa. Super. 2020). In that 

case, Mickley filed a post-sentence motion relying on the arguments raised in 

Torsilieri to challenge Subchapter H of SORNA, and was not afforded an 

evidentiary hearing. Thus, we determined that the proper course of action 

was to vacate the judgment of sentence and remand for an evidentiary 
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hearing, “so the parties can present evidence for and against the relevant 

legislative determinations. . .” Id. 

Instantly, Appellant’s argument rests entirely on the Torsilieri decision. 

Appellant states that he filed “this appeal to protect his rights in the event 

that the law requiring him to register is declared unconstitutional or otherwise 

invalidated requiring a resentence in this matter.” Appellant’s Brief at 12. 

Like the defendant in Mickley, Appellant did not have the opportunity to 

present evidence at a hearing. Therefore, in accordance with Torsilieri and 

Mickley, we vacate the judgment of sentence and remand for an evidentiary 

hearing.

Judgment of sentence vacated. Case remanded. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/05/2021