J

- S33022

- 20

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

COMMONWEALTH OF PENNSYLVANIA

v.

TYLER LABAR
Appellant :
:
:
:
:
:
:
:
: 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 c hallenges the constitutionality
of his classification as a Tier I sex offender under Pennsylvania’ s Sex Offender
Registration and Notification Act (SORNA) , 2 and th e requirement that he

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

. Appellant’s convictions ar o se from a sexual assault that occurred on

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

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.

1 18 P a.C.S.A. §§ 2718(a), 3126(a)(1).

2 42 Pa.C.S. A. §§ 9799.10

– 9799.41

.J

- S33022

- 20

- 2

-

drinking. He was charged with the above crimes and o n April 1, 2019, entered

a guilty plea

. On Augus t 1, 2019, the trial court sentenced Appellant to 248
days to 24 months less 1 day of incarceration , followed by two years of
probation. B ecause Appellant ha d 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 report ing period.

On A ugust 7, 2019, Appellant filed a post

- s entence motion raising the
Chester County Court of Common Pleas decision in Commonwealth v.

Torsilieri , and seeking , inter alia , modification of his sentenc e 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 post

sentence 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 Pe nn sylvania Supreme Court. See 37 MAP 2018 (Pa. 2018). Following acceptance of the appeal, an en ban c panel of this Court considered similar arguments and upheld SORNA as facially constitutional. Commonwealt h v. Tomsic

, 1517 CR 2016 (Aug. 19, 2019) (en ban c

) (amended order). We therefore rely on that decision while we await the Pennsylvania Supreme Court ’ s ruling.J

- S33022

- 20

- 3

-

Trial Court Opinion, 1/14/20, at 1

- 2. T his timely appeal followed. 3

Appellant presents the following issue s for review:
I. Whether SORNA is overbroad and violates Appellant’s Due Process rights afforded him under the United States and Pennsyl vania 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 challeng es the constitutionality of Subchapter H. Appellant

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

supra , which h eld 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 convic ted 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.

_________________ __________ ______ ____ _______

3 Both the trial court and Appellant have complied with Pennsylvania Rule of Appellate Procedure 1925.J

- S33022

- 20

- 4

-

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

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

to life time registration and reporting requirements. Id. (citing 42 Pa.C.S. A. §
9799.14 (d)(7) )

. Following post

- sentenc e motions in which Torsilieri challenged the
constitutionality of Subchapter H of SO RNA, 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. T he 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 Revis ed 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 viola ted 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.

_________________ __________ ______ ____ _______

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

- S33022

- 20

- 5

-

Torsilieri , 232 A.3d at 574

.
The Commonwealth filed a d irect 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 substa ntive due process protections. . . .
Second, the trial court held that Revised Subchapter H’s registration and notification provisions a re 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 l ifetime 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) viola ted 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 regi stration 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 ofJ

- S33022

- 20

- 6

-

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 pr events 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 conc lusions 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 a nd 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 ref uted 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).J

- S33022

- 20

- 7

-

Thus, the Supreme Court d etermined 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

state d that Torsilieri pr esented a “ col orable argument to debunk ” the General
Assembly’s presumptions regarding sex offender recidi vism 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] pre sumption 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 det ermining whether Torsilieri refuted the legislative
underpinnings of Subchapter H. Id.
A panel of this Court subsequent ly appli ed 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 afforde d an
evidentiary hearing . Thus, we determined that the proper course of action
was to vacate the judgment of sentence and remand for an evidentiaryJ

- S33022

- 20

- 8

-

hearing, “so the parties can present evidence for and against the relevant
legislative determinations. . .” Id.
Instantly, Appellant’s argument re sts 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 Mickle y , Ap pellan t 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

. Jurisdict ion
relinquished.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/05/2021