J-S27005-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

COLLIN REID 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1427 MDA 2022

Appeal from the Judgment of Sentence Entered May 27, 2022

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

No(s): CP-41-CR-0000998-2020

COMMONWEALTH OF PENNSYLVANIA

v.

COLLIN SCOTT REID 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1571 MDA 2022

Appeal from the Judgment of Sentence Entered September 1, 2022

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

No(s): CP-41-CR-0001409-2020

BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.

MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 08, 2023

Appellant, Collin Scott Reid, appeals from the aggregate judgment of 

sentence of 75 to 150 years’ incarceration imposed at two criminal dockets. 

All convictions relate to the sexual abuse of Appellant’s biological daughter, 

C.R., who was thirteen years old when the abuse started. Appellant raises 

five issues on appeal. We affirm. 
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C.R. testified that on Christmas Eve of 2019, she stayed in Appellant’s 

camper as part of a scheduled custodial visit. At approximately three a.m., 

Appellant put his penis between her legs, grabbed her breasts and buttocks, 

and touched her vagina with his fingers. This sexual assault lasted until 

approximately 5 a.m. C.R. disclosed the incident the next day to one of her 

brothers. An investigation commenced, during which C.R. revealed additional 

incidents that had occurred at her father’s apartment from roughly March 

through December of 2019. These incidents included vaginal touching, oral 

sex, and the use of sex toys. 

Appellant was charged at two separate dockets, with docket 1409-2020 

pertaining exclusively to the Christmas Eve crimes. Appellant was ultimately 

convicted of involuntary deviate sexual intercourse, 18 Pa.C.S. § 3123(a)(7); 

criminal attempt – aggravated indecent assault, 18 Pa.C.S. § 901(a); 

aggravated indecent assault, 18 Pa.C.S. § 3125(a)(8); two counts of indecent 

assault, 18 Pa.C.S. § 3126(a)(8); unlawful contact with a minor, 18 Pa.C.S. § 

6318(a)(1); two counts of corruption of minors, 18 Pa.C.S. § 6301(a)(1)(ii); 

endangering welfare of children, 18 Pa.C.S. § 4304(a)(1); invasion of privacy, 

18 Pa.C.S. § 7507.1(a)(1); indecent exposure, 18 Pa.C.S. § 3127(a); and 

incest, 18 Pa.C.S. § 4302(b)(2). 

At docket 998-2020, Appellant was charged with the crimes occurring 

between March and December of 2019. He was convicted of two counts of

aggravated indecent assault, 18 Pa.C.S. § 3125(a)(1) and (a)(8); corruption 

of minors, 18 Pa.C.S. § 6301(a)(1)(ii); two counts of indecent assault, 18 
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Pa.C.S. § 3126(a)(1) and (a)(8); and two counts of criminal attempt (rape

and statutory sexual assault), 18 Pa.C.S. § 901(a).

Appellant proceeded to a joint jury trial and was sentenced on May 27, 

2022, which included three consecutive, mandatory minimum sentences of 25 

to 50 years’ incarceration due to a prior conviction. Appellant filed a timely 

post-sentence motion, which resulted in the trial court’s granting partial relief 

on September 1, 2022, as the court determined that some counts merged and 

amended Appellant’s sentence.1 Appellant then filed a single notice of appeal

on October 3, 2022, docketed at 1427 MDA 2022.2 Appellant complied with 

the court’s order to file a Pa.R.A.P. 1925(b) statement.

Before addressing Appellant’s claims, we first address the fact that 

Appellant’s single notice of appeal listed both docket numbers in violation of

Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). On October 25, 2022, 

Appellant filed an application to amend, and this Court instructed Appellant to 

file amended notices of appeal with the trial court, while informing Appellant 

that this panel retained the option to quash the appeals. We decline to do so.

In Commonwealth v. Young, 265 A.3d 462 (Pa. 2021), our Supreme 

Court overruled Walker to the extent that it required quashing the appeal in 

this scenario. Id. at 478 n.19. The Young Court permitted the appellate 

courts to invoke Pa.R.A.P. 902(b)(1), which permits defective notices of 

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1 The partial grant of relief did not affect the aggregate sentence, as the 

amended sentences had been imposed concurrently. 

2 The appeal was timely as the thirtieth day, October 1, 2022, was a Saturday.
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appeal to be remedied as the appellate court deems appropriate. We accept 

Appellant’s amended notices pursuant to Rule 902 and we now address 

Appellant’s five issues raised in this consolidated appeal:

I. Was [the] evidence sufficient to convict [Appellant?]

II. Should the Commonwealth have been permitted to admit into 

evidence and play two (2) prison phone call recordings from May 

14, 2020?

III. Was [Appellant]’s 1996 New York conviction an equivalent

crime for the purposes of finding the twenty-five (25) year 

mandatory[-]minimum sentencing enhancement applied?

IV. Should the twenty-five (25) year mandatory[-]minimum

sentencing enhancement have applied since [Appellant]’s prior 

New York conviction occurred prior to Pennsylvania’s enactment 

of Sexual Offender Registration requirements?

V. Was the sentence entered by the Sentencing Court of 75 - 150 

years manifestly excessive and an abuse of discretion?

Appellant’s Brief at 8-9. 

Appellant’s first issue generically challenges every element of every 

conviction. The trial court concluded that Appellant has waived this issue and, 

in the alternative, that the Commonwealth presented sufficient evidence to 

sustain all convictions. The Commonwealth argues that the claims have been 

waived, but asks this Court to affirm in the alternative.

We agree that Appellant waived any challenge to the sufficiency of the 

evidence, and we decline to address in the alternative whether the evidence 

was sufficient. 

Appellant’s concise statement did not specifically challenge any 

particular conviction, let alone any specific elements. He merely alleged “that 
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the evidence submitted at Appellant’s [t]rial was insufficient to meet the 

Commonwealth’s burden of proving ... Appellant guilty of the offenses he was 

found guilty of, beyond a reasonable doubt.” Concise Statement, 10/24/22, 

at 1 (unnumbered). His brief slightly elaborates upon that argument, 

asserting that “the Commonwealth did not establish every element of every 

crime charged through the uncorroborated testimony of C.R., and the 

Commonwealth did not rule out simple transference between people who 

resided in the same space and were wearing the same clothing at times.” 

Appellant’s Brief at 17.

We conclude that Appellant’s concise statement was excessively vague 

to the degree that Appellant failed to preserve the issue for appellate review. 

To “preserve a sufficiency claim, the Rule 1925(b) statement must specify the 

element or elements upon which the evidence was insufficient.” 

Commonwealth v. Widger, 237 A.3d 1151, 1156 (Pa. Super. 2020) (citation 

omitted). The failure to do so waives the claim for appellate review, even if 

the trial court correctly guesses which issues the appellant wanted to raise. 

Commonwealth v. Bonnett, 239 A.3d 1096, 1106 (Pa. Super. 2020). 

Appellant’s statement did not specify any element or any crime, thereby 

waiving this claim.

We further decline to address whether the evidence was sufficient as an 

alternative holding. Appellant was convicted at two separate dockets of 

eighteen separate crimes. The elements of each crime vary and the dockets 

concern both the specific incident date of Christmas Eve 2019 as well as crimes 
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occurring over a nine-month period. We will not comb through the record to 

determine if portions of the record corroborate every element of every crime 

charged. See id. (concluding that a weight claim was waived on appeal due 

to a “blanket statement wherein [the appellant] declares the evidence was 

insufficient to convict him of all charges. ... This failure is especially significant 

herein, where the crimes were comprised of multiple elements and arose from 

two informations.”). Moreover, while we cannot overlook Appellant’s vague 

concise statement, we add that his brief fares no better, as he asks this Court 

to do his job. Appellant’s Brief at 16 (“Appellant asks the Superior Court to 

review the evidence and find that it was insufficient to convict him of these 

offenses.”). That responsibility lies with Appellant, not this Court. “It is [the 

a]ppellant’s obligation to sufficiently develop arguments in his brief by 

applying the relevant law to the facts of the case, persuade this Court that 

there were errors below, and convince us relief is due because of those errors. 

If an appellant does not do so, we may find the argument waived.” 

Commonwealth v. Gibbs, 981 A.2d 274, 284 (Pa. Super. 2009). See also 

Commonwealth v. Williams, 782 A.2d 517, 532 (Pa. 2001) (Castille, J., 

concurring) (stating that appellate courts are “neither obliged, nor even 

particularly equipped, to develop an argument for a party. To do so places 

the Court in the conflicting roles of advocate and neutral arbiter.”). 

Appellant’s second claim challenges the admission of two recorded 

phone conversations between Appellant and C.R. During these conversations, 

Appellant discussed whether he should accept the Commonwealth’s plea offer 
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of four to ten years of incarceration. C.R. told Appellant that if he did not take 

the plea she would have to testify, and Appellant stated he did not know what 

to do. The Commonwealth argued that the calls were indicative of 

consciousness of guilt, as it showed he was considering a guilty plea and did 

not profess his innocence. 

Appellant submits that the prejudicial aspect of this evidence derives 

from his incarceration. “Generally, no reference may be made at trial in a 

criminal case to a defendant’s arrest or incarceration for a previous crime,

[but] there is no exact rule in Pennsylvania which prohibits reference to a 

defendant’s incarceration awaiting trial or arrest for pending charges.” 

Appellant’s Brief at 18. 

We agree with the Commonwealth that this claim has been waived as 

Appellant did not raise this objection at trial. “To preserve an issue for review, 

a party must make a timely and specific objection at trial, and [the] ‘Superior 

Court will not consider a claim on appeal which was not called to the trial 

court’s attention at a time when any error committed could have been 

corrected.’” Commonwealth v. Smith, 606 A.2d 939, 942 (Pa. Super. 1992)

(quoting Noecker v. Johns–Manville Corp., 513 A.2d 1014, 1018 (Pa. 

Super. 1986)). As the trial court opinion explains, Appellant’s trial objection 

was limited to the claim that his thought process as to accepting a plea was 

highly prejudicial and not particularly relevant. Addressing the 

Commonwealth’s arguments, Appellant argued that a willingness to plead
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guilty was not indicative of guilt because of the penalties he faced if convicted 

at trial. Appellant then raised this issue as part of his post-sentence motions, 

but as the trial court stated in its order addressing the post-sentence motions, 

his “filing did not elaborate on why he contends the admission of the prison 

phone calls constituted error.” Order, 9/1/22, at 4. The court stated it “gave 

[Appellant] multiple opportunities to expand on this ground, or offer additional 

grounds, for his objection; each time, counsel rested upon the objection as 

stated above.” Order, 9/1/22, at 8. As Appellant did not cite the prejudicial 

effect of revealing his incarceration status to the jury as a basis for excluding 

the evidence, we conclude that this claim has been waived.

Appellant’s third issue concerns the imposition of a mandatory-minimum 

sentence based on Appellant’s prior conviction in New York. Appellant was 

convicted in New York of the following offense:

A person is guilty of sexual misconduct when:

1. He or she engages in sexual intercourse with another person 

without such person’s consent; or

2. He or she engages in oral sexual conduct or anal sexual conduct 

with another person without such person’s consent; or

3. He or she engages in sexual conduct with an animal or a dead 

human body.

Sexual misconduct is a class A misdemeanor.

N.Y. Penal Law § 130.20 (hereinafter “New York offense”). Appellant was 

convicted of violating the first subdivision. Due to this conviction, the 

Commonwealth sought, and the trial court applied, the following mandatory 

minimum:
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(a) Mandatory sentence.--

(1) Any person who is convicted in any court of this 

Commonwealth of an offense set forth in section 9799.14 (relating 

to sexual offenses and tier system) shall, if at the time of the 

commission of the current offense the person had previously 

been convicted of an offense set forth in section 9799.14 or 

an equivalent crime under the laws of this Commonwealth in effect 

at the time of the commission of that offense or an equivalent 

crime in another jurisdiction, be sentenced to a minimum 

sentence of at least 25 years of total confinement, 

notwithstanding any other provision of this title or other statute 

to the contrary. 

42 Pa.C.S. § 9718.2(a)(1) (emphasis added).

The Commonwealth asserted that the New York offense was an 

“equivalent crime” to at least two offenses specified within Section 9799.14:

sexual assault as defined by 18 Pa.C.S. § 3124.1, and indecent contact as 

defined by 18 Pa.C.S § 3126(a)(1). Sexual assault is a Tier III sexual offense, 

42 Pa.C.S. § 9799.14(d)(5), and subsection 3126(a)(1) is classified as a Tier 

I offense. 42 Pa.C.S. § 9799.14(b)(6). 

The General Assembly has employed several different terms when 

directing a court to compare an out-of-state conviction to a Pennsylvania 

offense. See generally A.L. v. Pennsylvania State Police, 274 A.3d 1228, 

1236 (Pa. 2022) (“[T]he General Assembly has used variations on the theme 

of comparability.... To express the concept of similarity[,] the legislative body 

has used different adjectives such as ‘equivalent,’ ‘similar,’ ‘essentially 

similar,’ ‘comparable,’ and ‘substantially the same.’”). In A.L., which involved 

a question of whether a prior conviction required the appellant to register as 
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a sexual offender, our Supreme Court endorsed the elemental approach, 

which involves an examination of the respective elements of the two crimes. 

The parties’ focus here is not on an elemental comparison, and

Appellant’s brief does not address whether the offenses were equivalent under 

that test. Instead, he offers a cursory argument focusing on the applicable 

penalties. Appellant maintains that, because the New York offense is graded 

as a misdemeanor whereas the purported equivalent sexual assault statute in 

this Commonwealth is graded as a felony, the two offenses cannot be deemed 

equivalents as the permissible range of punishments is too different. 

However, Appellant has not offered a developed argument in support of his 

claim. His entire substantive argument in support states, “Appellant contends 

that the sentencing [c]ourt erred in finding that an equivalency existed 

between New York’s Sexual Misconduct statute and any offense listed under 

9799.14 because the maximum punishment scheme is entirely different 

between New York’s statute and any offense listed under 9799.14.” 

Appellant’s Brief at 21. Appellant appears to argue that the General Assembly 

intended that a foreign conviction cannot be an “equivalent offense” if the 

foreign jurisdiction authorizes a lesser maximum punishment than the 

comparable Pennsylvania offense.

We disagree. This issue involves a statutory analysis concerning the 

meaning of the term “equivalent offense.” We agree with the Commonwealth 

that Appellant’s “interpretation of ‘equivalent’ is not legally sound.” 

Commonwealth’s Brief at 19. It is clear that in some situations the grading of 
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an offense is relevant to a comparative analysis. We conclude that this 

recidivist statute is not one of them.

In Commonwealth v. Sampolski, 89 A.3d 1287 (Pa. Super. 2014), 

Sampolski pled guilty to one count of corruption of a minor, 18 Pa.C.S. §

6301(a)(1), graded as a misdemeanor of the first degree. At the time, a 

conviction for this offense did not require registration in the Commonwealth’s

sexual offender registry. When the General Assembly enacted the Sexual 

Offender Registration and Notification Act (“SORNA”)3in 2012, it designated 

the felony version of corruption of minors as an offense requiring registration. 

The Pennsylvania State Police (“PSP”) concluded that Sampolski’s 

misdemeanor conviction was equivalent to the felony version and, therefore, 

he had to register due to having been convicted of a “comparable military 

offense or similar offense ... under a former law of this Commonwealth[.]” Id.

at 1288 (quoting statute). The Sampolski Court disagreed, concluding that, 

under Commonwealth v. Northrip, 985 A.2d 734 (Pa. 2009), which likewise 

involved a statutory interpretation argument concerning the term “equivalent 

offense,” the crimes were not equivalents as the elements were different. As 

relevant to Appellant’s argument, the panel observed that the two crimes 

differed in terms of their grading: 

Finally, the two crimes are different because Corruption (Former) 

is a misdemeanor of the first degree, whereas Corruption (F3) is 

a felony of the third degree. Citing to, inter alia, Northrip, the 

Commonwealth contends that “the grading of the offenses does 

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3 42 Pa.C.S. §§ 9799.1 - 9799.40.
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not seem to be among the factors to consider when deciding 

whether the offenses are equivalent.” Commonwealth's Brief at 

11. We cannot agree, as the Supreme Court in Northrip 

specifically included “classification of the conduct proscribed” as a 

key determinant in the equivalency analysis. Northrip, ... 985 

A.2d at 740.

Id. at 1289–90.

While this statement is dicta as the elemental analysis resolved the 

claim, other decisions have likewise interpreted a statutory comparison test

to permit, at least in some circumstances, an assessment of the comparative 

gradings. For example, in Commonwealth v. Bolden, 532 A.2d 1172, 1175 

(Pa. 1987), an elemental equivalence analysis was applied for purposes of 

calculating a prior record score based upon convictions from other 

jurisdictions. While this case predates Northrip, the latter decision 

approvingly quotes Bolden’s conclusion that an “equivalent offense is that 

which is substantially identical in nature and definition [to] the out-of-state or 

federal offense when compared [to the] Pennsylvania offense.” Northrip, 

985 A.2d at 738 (quoting Bolden, 532 A.2d at 1175-76 (bracketing supplied 

by Northrip)). The “nature and definition” of an offense can thus include a 

consideration of its grading. See also Commonwealth v. Lites, 234 A.3d 

806, 818 (Pa. Super. 2020) (“It is only after the trial court concludes that the 

elements of the prior and current Pennsylvania offense are equivalent that the

trial court may consider the underlying facts for grading purposes.”). We 

therefore do not apply a per se rule that the grading of an offense is irrelevant

to an “equivalent offense” analysis. 
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However, the operation of the mandatory-minimum statute establishes 

that the General Assembly did not intend for a court to examine the grading 

of a foreign conviction. Initially, we conclude that the meaning of “equivalent 

offense” is ambiguous. See A.L., supra at 1237 (“[I]n view of this variety of 

possible meanings for “comparable,” the term is ambiguous – or at least “not 

explicit,” 1 Pa.C.S. § 1921(c) – thus warranting consideration of the factors 

set forth in the Statutory Construction Act.”). The same logic applies to 

“equivalent.” Id. at 1236 (“The dictionary defines ‘comparable’ as capable of 

being compared, worthy of comparison, like or equivalent.”). In resolving the 

ambiguity, the A.L. Court stated:

The occasion and necessity for this aspect of the statute, the 

mischief to be remedied, and the object to be attained, see 1 

Pa.C.S. § 1921(c)(1), (3), (4), are all straightforward: to avoid 

any unfairness or harm to the public that would result if an 

offender were treated more leniently due to the fortuity that his 

or her prior conviction arose in a different jurisdiction.

Id. at 1237. 

The same assessment applies to this recidivist statute. This is evident 

from the statute’s operation, which establishes that the punishment is 

irrelevant to the imposition of the mandatory-minimum sentence. It is 

significant that the General Assembly did not implement gradually escalating 

penalties based on the severity of the prior convictions. Regardless of whether 

a predicate offense is classified as a Tier I, Tier II, or Tier III offense, a 

conviction for any one of those offenses subjects an offender to the same 

mandatory-minimum sentence Appellant received. For example, it makes no 
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difference, for purposes of the mandatory sentence, whether an offender is 

convicted of the Tier I offense of indecent assault, 18 Pa.C.S. § 3126(a)(1) 

(graded as a misdemeanor of the second degree), or the more serious 

“version” of that crime, aggravated indecent assault, 18 Pa.C.S. § 3125 

(graded as a felony of the first or second degree depending on the particular 

subsection charged). Those offenses are classified into different tiers. See 

42 Pa.C.S. § 9799.14(b)(6) (classifying indecent assault as a Tier I offense);

(d)(7) (classifying aggravated indecent assault as a Tier III offense). Yet an

offender who is convicted of either offense must serve a mandatory minimum 

of 25 years of incarceration if he or she is later convicted of an offense subject 

to the mandatory sentence. Thus, the severity of the mandatory minimum 

does not escalate depending on the grading of the prior conviction. On this 

point, we note that in Commonwealth v. Baker, 78 A.3d 1044, 1047 (Pa. 

2013), our Supreme Court rejected an argument that the mandatory minimum 

was grossly disproportionate for a second conviction of possessing child 

pornography. Then-Chief Justice Castille filed a concurring opinion noting that 

the severity of penalties for first time offenders is logically structured, but the 

recidivist provisions are not:

In short, the overall legislative framework logically recognizes 

differences in levels of gravity as between sexually assaulting a 

child (most serious), the filming of such crimes (next most 

serious), and distributing or possessing the resulting child 

pornography (third most serious). The recidivist provision, 

however, draws no such distinctions, and treats the third most 

serious offense the same as the most serious one. An individual ...

who is convicted of possessing child pornography for the second 
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time, is mandated to serve a least five more years of prison time 

than the maximum term allowable for a first time child rapist.

Id. at 1057 (Castille, C.J., concurring).

The manifest legislative intent to harshly punish repeat offenders 

illustrates that the General Assembly would not have intended for the foreign 

jurisdiction’s grading decision to have any bearing on the applicability of the 

recidivist provision. The grading makes no difference for Pennsylvania 

offenses and Appellant offers no reason to think the intent would be any 

different for a foreign conviction. 

We also add that Section 103 of the Crimes Code defines the term 

“element of an offense,” and the grading of an offense does not appear in that 

definition. 

“Element of an offense.” Such conduct or such attendant 

circumstances or such a result of conduct as:

(1) is included in the description of the forbidden conduct in the 

definition of the offense;

(2) establishes the required kind of culpability;

(3) negatives an excuse or justification for such conduct;

(4) negatives a defense under the statute of limitation; or

(5) establishes jurisdiction or venue.

18 Pa.C.S. § 103. 

This statutory definition suggests that the grading of an offense is 

analytically distinct from the offense itself. While this does not end the matter, 

as our prior cases accept that the grading of an offense may be relevant, in 

conjunction with the foregoing analysis we conclude that the General 
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Assembly would not have intended to treat Appellant more leniently due to 

the fortuity of the offense grading. We therefore reject Appellant’s specific 

argument.

At this juncture, we reiterate that Appellant does not raise any argument 

concerning the relevant elemental comparison test. However, that issue 

implicates the legality of Appellant’s sentence. See Commonwealth v. 

Shaw, 744 A.2d 739, 740 (Pa. 2000) (finding that a claim that the trial court 

erred by finding a foreign conviction constituted an “equivalent offense” to a 

Pennsylvania DUI conviction for purposes of sentencing constituted a 

nonwaivable challenge to the legality of sentence). Thus, this issue may be 

examined sua sponte and the A.L. decision dictates that the elemental test 

set forth therein applies. A.L., supra at 1238 (holding that “the categorical 

approach as described by the Supreme Court is to be applied when 

ascertaining whether a prior extra-jurisdictional offense is ‘comparable’ or 

‘equivalent’ under SORNA Subchapter H”).

That we may sua sponte review the issue does not compel this Court to 

develop arguments for both parties. Judicial modesty is especially appropriate 

here because the trial court opinion conducted an elemental analysis and 

determined that Appellant’s New York offense is an “equivalent offense” to the 

two crimes cited by the Commonwealth. Thus, Appellant was aware of the 

trial court’s analysis and chose not to challenge it. As our Supreme Court 

stated in Commonwealth v. Armolt, 294 A.3d 364 (Pa. 2023), an appellate 
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court’s sua sponte ability to raise illegality of sentence claims does not compel 

the court to do so.

Although an appellate court may sua sponte raise and address 

issues concerning illegal sentences, we may also decline to do so 

where appropriate. ... [E]ven with respect to legality of sentencing 

claims, appellate courts retain discretion to enforce procedural 

rules and jurisdictional limits and require such claims be properly 

presented at the time they are raised in order to obtain review 

thereof. 

Id. at 377–78 (cleaned up; emphasis in original). Moreover, responding to 

Justice Wecht’s concurring opinion arguing that the Court should have 

reviewed the legality of sentence issue sua sponte, the Court cited the 

distinction between a “known” issue and a novel one: 

Indeed, the concurrence admits that what it really seeks is the 

Court’s adoption of a new rule altogether: one that condones the 

practice of appellate judges raising novel legality of sentencing 

theories, without prompting from or advocacy by the parties, and 

then resolving them in the first instance. We decline to endorse 

such a rule. Although there is nothing improper about an 

appellate court addressing sua sponte a known legality of 

sentence problem if it appears in a case, a court that goes out of 

its way to offer new theories for expanding the class of illegal 

sentencing claims has veered into the “conflicting roles of 

advocate and neutral arbiter.”

Id. at 378 n.18 (quoting Williams, supra at 532 (Castille, J., concurring)).

In Armolt, the Court declined to consider whether a particular 

constitutional claim implicated the legality of sentence doctrine. “[W]e do not 

resolve whether [Armolt]’s constitutional claims implicate the legality of his 

sentence such that they are nonwaivable.” Id. at 380. Still, we do not view 

the reference to a “known” legality of sentence problem to mean that courts 
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should freely act as advocate and arbiter simply because a given claim clearly 

involves a non-waivable challenge to the legality of sentence. We view the 

“known” nature of the problem to also incorporate a consideration of whether 

the result is dictated by established precedent. In such cases, the problem of 

acting as advocate and arbiter is significantly diminished because an existing 

case dictates the outcome. Here, however, there is no precedent addressing 

whether Appellant’s New York offense is an equivalent offense to any of the 

offenses specified within 42 Pa.C.S. § 9799.14. Furthermore, a conclusion 

that the New York offense of sexual misconduct is not an equivalent offense 

to any offense listed within Section 9799.14 would risk potential mischief as 

it is probable that some offenders are required to register due to a 

determination that the New York offense is an equivalent offense to a 

Pennsylvania crime.

Simultaneously, we do not believe that it exceeds our judicial role to 

note that the trial court’s equivalency analysis may not be correct; the legality 

of sentence construct extends to this issue, and we could address it on the 

merits if we chose.

4

 By extension, we can also settle for the middle ground 

____________________________________________

4 The A.L. case illustrates the application of the elemental comparison test. 

There, the PSP determined that A.L., who was convicted in a military court of 

sexual assault under the Uniform Code of Military Justice, had to register 

under SORNA. The PSP determined that the offense was “comparable” to the 

Pennsylvania crime of sexual assault, 18 Pa.C.S. § 3124.1, for purposes of the 

relevant statute, 42 Pa.C.S. § 9799.14. The A.L. Court focused on the 

different mens reas in concluding that the two offenses were not equivalent. 

The military offense permitted a conviction upon proof that the actor knew or 

(Footnote Continued Next Page)
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of noting the issue, which Appellant may then pursue on collateral review if 

he wishes. This result is, in our view, fair to both parties, as the 

Commonwealth will have the opportunity to respond if Appellant pursues the 

claim. Additionally, as the issue implicates the legality of sentence framework, 

the issue can be raised under the PCRA without the statutory impediment of 

waiver. See Commonwealth v. Jones, 932 A.2d 179, 181 (Pa. Super. 2007) 

(holding that a claim challenging legality of sentence “cannot be considered 

waived for purposes of the PCRA”). Accordingly, Appellant will have an 

opportunity to develop a specific argument as if it were raised on direct appeal.

In sum, declining to decide the merits of this issue does not leave Appellant 

____________________________________________

should have known that the victim was incapable of consent due to 

intoxication, whereas Section 3124.1 requires recklessness or above. Because 

the military offense would allow a conviction for negligent acts, the two crimes 

were not equivalent.

Presently, the trial court and Commonwealth both assume that the 

common, dictionary definition of “consent” and “sexual intercourse” apply to 

both the New York offense and Section 9799.14. However, the two statutes 

differ markedly when it comes to “consent.” Pennsylvania law does not define 

the term. New York, however, does. And its definition of “consent” includes 

many instances of presumptive consent, which effectively makes the crime 

one of strict liability, at least in certain cases. For example, per N.Y. Penal 

Law § 130.05(3)(a), a person “is deemed incapable of consent when he or she 

is ... less than seventeen years old[.]” By doing so, the New York offense 

arguably sweeps more broadly than Section 3124.1 because it effectively 

creates a strict liability offense in some circumstances. As stated, we decline 

to develop an argument for the benefit of Appellant, but this point alone 

establishes that the offenses may not be similar. 
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any worse off,5 while affording the courts with the benefit of adversarial 

briefing on the claim. 

Appellant’s fourth issue asserts that the application of the mandatory 

minimum statute violates the ex post facto clause. We disagree. 

Appellant posits that this was an error by the [c]ourt because of

the same logic that applies to the treatment of retroactive

application of SORNA registration. Commonwealth v. Santana,

266 A.3d 528 (Pa. ... 2021). Here, the Pennsylvania Supreme 

Court held that retroactive application of SORNA was punitive, 

supporting the finding that such application amounted to

unconstitutional ex post facto law.

As in Santana, the sentencing enhancement perpetuated [sic] by 

42 Pa.C.S.[] § 9718.22(a)(1) is no doubt punitive, and 

retroactively punished the Appellant for conduct that occurred 

prior to the enactment of SORNA in the Commonwealth of 

Pennsylvania.

Appellant’s Brief at 23.

Santana does not involve application of a recidivist provision. In that 

case, our Supreme Court held that its decision in Commonwealth v. Muniz, 

164 A.3d 1189 (Pa. 2017), which had deemed the then-existing version of 

SORNA to constitute a punitive law which could not be applied retroactively, 

extended to offenders like Santana who had to register in Pennsylvania due 

to a conviction from another jurisdiction. 

Santana committed a rape in 1983. SORNA was enacted in 2012, 

and was applied retroactively to the triggering rape in 2015, when 

Santana moved here, over thirty years after the commission of 

that offense. Obviously, SORNA is being applied retroactively. All 

____________________________________________

5 Additionally, deciding the merits of the claim against Appellant would force 

Appellant to seek further review with our Supreme Court as our holding would 

constitute law of the case. 
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that remains is the question of whether SORNA is punitive. In 

1983, there were no sexual offender registration laws in New York 

or in Pennsylvania, and, thus, Santana faced no punishment 

beyond his imposed sentence. The same cannot be said for 2015. 

Because rape is classified under SORNA as a Tier III offense, 

Santana was subjected to the same SORNA requirements as was 

Muniz. We already have ruled in Muniz that those requirements 

are punitive in nature.

Santana, 266 A.3d at 538.

Appellant seeks to apply the Santana holding here, arguing that “[t]he 

conduct which gave rise to the conviction was from June 7, 1995, which was 

prior to Pennsylvania[’s] enacting SORNA.” Appellant’s Brief at 22. The 

Santana decision simply addressed whether Santana had to register under 

the then-existing version of SORNA. Here, the application of the recidivist 

statute has nothing to do with registration obligations. As we stated in 

Commonwealth v. Rose, 81 A.3d 123 (Pa. Super. 2013), aff'd, 127 A.3d 

794 (Pa. 2015), “in discussing recidivist statutes and ex post facto

implications, courts have consistently noted that defendants are being 

punished not for the earlier criminal acts and convictions, but for the 

subsequent crime that occurred after the passage of the pertinent recidivist 

statute.” Id. at 135 (collecting cases). Because Appellant is being punished 

on the basis of a recidivist statute that existed when Appellant committed his 

crimes, SORNA is not being applied retroactively and there is no ex post facto 

issue involved. 
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Appellant’s final issue challenges the discretionary aspects of his 

sentence. This issue is not appealable as of right and Appellant must invoke 

our jurisdiction. 

[W]e conduct a four part analysis to determine: (1) whether [the] 

appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 

and 903; (2) whether the issue was properly preserved at 

sentencing or in a motion to reconsider and modify sentence, see

Pa.R.Crim.P. 1410 [now Rule 720]; (3) whether [the] appellant’s

brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there 

is a substantial question that the sentence appealed from is not 

appropriate under the Sentencing Code, 42 Pa.C.S.[ ] § 9781(b).

Commonwealth v. Martin, 611 A.2d 731, 735 (Pa. Super. 1992) (most 

internal citations omitted). 

Appellant has met the first two requirements but not the remaining two. 

Appellant’s brief does not include a Rule 2119(f) statement and, as such, there 

is nothing for this Court to review regarding a substantial question. 

Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002) (stating that an 

appellant must “articulate[] in his Rule 2119(f) statement a substantial 

question so as to warrant appellate review”). However, the Commonwealth 

has not objected to this omission, and we may proceed to examine the 

substantive argument to determine if Appellant has presented a substantial 

question. Commonwealth v. Rumbaugh, 529 A.2d 1112, 1113 (Pa. Super. 

1987) (stating that, in absence of Commonwealth’s failure to object to the 

absence of a Rule 2119(f) statement, this Court may examine the claim to 

determine if a substantial question was presented). 
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Appellant argues that he is serving a de facto life sentence as he will not 

be eligible for parole until he is 118, which he submits is excessive. 

Additionally, he submits that the court “failed to consider numerous points 

raised by sentencing counsel at the time of sentencing, namely ... Appellant’s 

prior substance abuse issues, his undiagnosed mental health issues, and the 

fact that he had taken substantial steps to better himself during his pretrial 

incarceration by obtaining his G.E.D. among other things.” Appellant’s Brief 

at 26. Mindful that we are assessing the reasons for granting the petition, as 

opposed to the merits of the claim, we conclude that Appellant has failed to 

present a substantial question. Appellant’s lengthy sentence resulted from 

the trial court’s imposing three consecutive instances of the mandatory 

minimum.6 Thus, in effect Appellant is challenging the decision to impose 

consecutive sentences instead of concurrent. “[T]his Court has recognized 

‘the imposition of consecutive, rather than concurrent, sentences may raise a 

substantial question in only the most extreme circumstances, such as where 

the aggregate sentence is unduly harsh, considering the nature of the crimes 

and the length of imprisonment.’” Commonwealth v. Austin, 66 A.3d 798, 

808 (Pa. Super. 2013) (quotation marks and citation omitted). The decision 

to impose consecutive sentences for the heinous nature of these crimes does 

not constitute an extreme circumstance, notwithstanding the de facto life 

____________________________________________

6

 The trial court imposed consecutive instances of the mandatory minimum 

at the counts of aggravated indecent assault and attempted rape at docket 

998-2020, and the count of involuntary deviate sexual intercourse at docket 

1409-2020. All other sentences were imposed concurrently.
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sentence. Moreover, a claim that the trial court failed to adequately consider 

mitigating factors, even when paired with a lengthy sentence resulting from 

consecutive sentences, does not generally raise a substantial question. 

Commonwealth v. Radecki, 180 A.3d 441, 469 (Pa. Super. 2018)

(concluding that the appellant “failed to raise a substantial question with 

respect to his excessiveness claim premised on the imposition of consecutive

sentences and inadequate consideration of mitigating factors”).

Alternatively, we would find no abuse of discretion. The trial court 

addressed Appellant’s claim in its order and opinion denying his post-sentence 

motions:

Appellant’s third post-trial motion is a motion for reconsideration 

of his sentence. Appellant primarily argues that the [c]ourt failed 

to properly consider numerous factors at the time of sentencing,

specifically Appellant’s age, growth, increased insight, and the fact 

that he had previously undiagnosed mental health issues for which 

he had become treated and medication compliant since his

incarceration. Appellant noted that, in light of his age (43) at the 

time of sentencing, the [c]ourt’s 75 to 150 year sentence is a de 

facto life sentence. Appellant argues that such a sentence is 

manifestly excessive based on the circumstances of the offenses, 

the history and characteristics of [Appellant], as well as the lack 

of public interest and need for protection.

The [c]ourt discussed at length, on the record, its reasons for the 

sentence it imposed at Appellant’s May 27, 2022 sentencing 

hearing. To summarize, Appellant sexually abused the victim, 

who was at the time 13 years old, repeatedly over the course of 

nine months in multiple locations. The offenses included

attempted rape, incest, and involuntary deviate sexual 

intercourse, all felonies of the first degree. The impact on the 

victim cannot be overstated, especially in light of the fact that she 

is Appellant’s daughter. Appellant was previously convicted of a

sexual offense involving a different victim that would have 

required SORNA registration had it been committed in 
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Pennsylvania. When fashioning its sentence, the [c]ourt 

considered Appellant’s statement at the time of sentencing, and 

took into account the efforts he has made to gain insight and grow 

following his arrest on these charges. It is in part for these 

reasons that the [c]ourt imposed a lower sentence than requested 

by the Commonwealth.

In short, this [c]ourt’s sentence was not based on partiality, 

prejudice, bias or ill will. In light of the seriousness of Appellant’s 

crimes, their effect on the victim, and the need to protect both the 

victim and community, the aggregate sentence of 75 to 150 years 

was not manifestly unreasonable. Anything shorter would not 

have fully reflected the gravity of the offenses.

Order, 9/1/22, at 11-12 (footnote omitted).

The General Assembly has established a punitive mandatory sentence 

scheme for repeat sexual offenders, and we presume that Section 9718.2 

authorizes consecutive sentences, as it calls for a minimum of “at least” 25 

years of total confinement with no apparent statutory limitation on 

consecutive sentences.

7 Cf. Commonwealth v. Fields, 107 A.3d 738, 744 

(Pa. 2014) (“The General Assembly is certainly aware that a defendant may 

be sentenced for multiple crimes simultaneously. In the context of mandatory 

minimum sentencing, moreover, it has, on at least one occasion, acted to 

impose limitations upon multiple sentences where it favors such limitations.”). 

Appellant is not entitled to a volume discount, and it is difficult to overstate 

the depravity of these crimes. Moreover, Appellant’s argument that the court 

failed to consider mitigating circumstances is belied by the record. While 

Appellant has failed to ensure that the sentencing transcript was made part of 

____________________________________________

7 Even if the statute could be read to bar consecutive sentences arising from 

the same criminal episode, this case involves several episodes of sexual abuse 

over a lengthy period of time. 
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the certified record, the trial court’s order and opinion denying his postsentence motion for reconsideration of his sentence establishes that the court 

did consider those factors. The judge simply decided to weigh them differently 

than Appellant wishes. 

In this regard, our Supreme Court has “reinforced the notion that a trial 

court has broad discretion in sentencing a defendant, and concomitantly, the 

appellate courts utilize a deferential standard of appellate review in 

determining whether the trial court abused its discretion in fashioning an 

appropriate sentence.” Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 

2014) (citation omitted). “Simply stated, the sentencing court sentences 

flesh-and-blood defendants and the nuances of sentencing decisions are 

difficult to gauge from the cold transcript used upon appellate review. 

Moreover, the sentencing court enjoys an institutional advantage to appellate 

review, bringing to its decisions an expertise, experience, and judgment that 

should not be lightly disturbed.” Id. (quoting Commonwealth v. Walls, 926 

A.2d 957, 961 (Pa. 2007)). Furthermore, the trial court reviewed a presentence report, and we “presume that the sentencing judge was aware of 

relevant information regarding the defendant’s character and weighed those 

considerations along with mitigating statutory factors.” Commonwealth. v.

Devers, 546 A.2d 12, 18 (Pa. 1988). We therefore would find no abuse of 

discretion even if Appellant had invoked our jurisdiction.

Judgment of sentence affirmed.

Judge Bowes joins this memorandum.
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Judge Sullivan concurs in the result.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 11/8/2023