J-S32010-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KEVIN THOMAS CONROY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2441 EDA 2019

Appeal from the Judgment of Sentence Entered May 17, 2019

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

No(s): CP-45-CR-0001315-2018

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

MEMORANDUM BY COLINS, J.: FILED FEBRUARY 17, 2021

Appellant, Kevin Thomas Conroy, appeals from the aggregate judgment 

of sentence of 78 to 180 months of confinement, which was imposed after he 

pleaded guilty to one count of criminal attempt to commit involuntary deviate 

sexual intercourse with a child, two counts of endangering welfare of children, 

and one count of child pornography.1 After careful review, we affirm.

Appellant engaged in a pattern of criminal behavior between 2008 and 

2015. On November 1, 2018, he pleaded guilty to the aforementioned 

charges, and, on May 17, 2019, he was sentenced. On May 23, 2019, 

Appellant filed timely post-sentence motions, which he amended the next day, 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 901(a) (to commit § 3123(b)), § 4304(a)(1), and § 6312(d), 

respectively.
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including: (1) a motion to bar application of Pennsylvania’s Sex Offender 

Registration and Notification Act (“SORNA”), 42 Pa.C.S. §§ 9799.10-9799.42,2

and (2) a request that a “no contact provision with [the victim,] R.C.[,] be 

subject to the victim’s request for contact, contact pursuant to R.C.’s

counselor’s recommendation, or contact if the victim desires after she is of the 

age of majority.” Amended Post Sentence Motion and Reconsideration of 

Sentence, 5/24/2019, at 6. For the former challenge, Appellant contended:

SORNA denies [Appellant] [d]ue [p]rocess under Article 1 and 11 

[sic] of the Pennsylvania Constitution because it creates an 

irrebuttable presumption that those convicted of enumerated 

offenses “pose a high risk of committing additional sexual 

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2 Act of December 20, 2011, P.L. 446, No. 111, § 12; amended by Act of 

February 21, 2018, P.L. 27, No. 10, §§ 1-20, effective immediately (“Act 10”); 

and re-enacted and amended by Act of June 12, 2018, P.L. 140, No. 29, §§ 1-

23, effective immediately.

Act 10 split SORNA, which was previously designated in the

Sentencing Code as Subchapter H, into two subchapters. Revised

Subchapter H applies to crimes committed on or after 

December 20, 2012, whereas Subchapter I applies to crimes 

committed after April 22, 1996, but before December 20, 2012. 

In essence, Revised Subchapter H retained many of the 

provisions of SORNA, while Subchapter I imposed arguably 

less onerous requirements on those who committed 

offenses prior to December 20, 2012, in an attempt to address 

this Court’s conclusion in [Commonwealth v.] Muniz[, 164 A.3d 

1189 (Pa. 2017) (plurality),] that application of the original 

provisions of SORNA to these offenders constituted an ex post 

facto violation.

Commonwealth v. Torsilieri, 232 A.3d 567, 580–81 (Pa. 2020) (emphasis 

added). Subchapter I was designed to ensure that those required to register 

retroactively under SORNA — and therefore entitled to relief following 

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (plurality) — will still 

have to do so.
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offenses” depriving those individuals of the fundamental right to 

reputation. . . .

SORNA constitutes criminal punishment and therefore violates the 

separation of powers doctrine because it usurps the exclusive 

judicial function of imposing a sentence.

Id. at 4-5.

On May 31, 2019, the Court of Common Pleas of Monroe County sat en 

banc to hear Appellant’s SORNA challenge along with a number of other 

defendants who had likewise challenged SORNA’s constitutionality. At the 

hearing, Appellant’s counsel joined with the arguments of the other 

defendants’ counsel, N.T., 5/31/2019, at 22, that SORNA was punitive and 

violated due process by creating a rebuttable presumption that a sex offender 

is likely to reoffend. Id. at 9-11, 15-19. The panel and counsel discussed 

scientific studies about the rate of recidivism amongst sexual offenders 

compared to other criminals, but the studies themselves were never 

introduced into evidence. Id. at 20-21, 26-27. In fact, no evidence was 

presented at the hearing on Appellant’s post-sentence motion. See generally

id. Finally, Appellant and the other defendants requested that the en banc

panel declare SORNA unconstitutional in its entirety, citing to a decision from 

the Chester County Court of Common Pleas, Commonwealth v. Torsilieri, 

Docket Number CP-15-CR-0001570-2016,3 which found Subchapter H to be 

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3 At the time of the en banc panel of the Court of Common Pleas of Monroe 

County, two appeals of the Torsilieri decision from the Court of Common 

Pleas of Chester County were pending: one appeal by Defendant Torsilieri 

before this Court, Commonwealth v. Torsilieri, 221 A.3d 280 (Pa. Super. 
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unconstitutional. Id. at 23. A “July 18, 2019 Order disposed of the 

constitutional issue raised by Appellant.” Trial Court Opinion, dated 

September 19, 2019, at 1. On August 16, 2019, Appellant filed this timely 

direct appeal.4

Appellant presents the following issues for our review:

[1.] Whether the trial court erred as a matter of law and abused 

its discretion in failing to provide that [Appellant] can have contact 

with R.C. only at R.C.’s desire after they are of the age of majority 

or pursuant to R.C.’s counselor’s recommendation?

[2.] Whether the trial court erred as a matter of law and abused 

its discretion in failing to find that SORNA denies [Appellant] due 

process under Article 1 and 11 [sic] of the Pennsylvania 

constitution because it creates an irrebuttable presumption that

those convicted of enumerated offenses “pose a high risk of 

committing additional sexual offenses”[

5] depriving those

individuals of the fundamental right to reputation?

[3.] Whether the trial court erred as a matter of law and abused 

its discretion in failing to find that SORNA denies [Appellant]

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filed August 16, 2019); and a second appeal by the Commonwealth filed 

directly to the Supreme Court of Pennsylvania pursuant to 42 Pa.C.S. § 722(7) 

(relating to the Supreme Court’s exclusive jurisdiction over appeals from final 

orders of the Court of Common Pleas in matters where the Court of Common 

Pleas has held, inter alia, a statute to be unconstitutional), Commonwealth 

v. Torsilieri, 232 A.3d 567 (Pa. 2020). In the former, this Court affirmed, 

and Defendant Torsilieri petitioned for allowance of appeal with the 

Pennsylvania Supreme Court, which our Supreme Court denied. 

Commonwealth v. Torsilieri, 230 A.3d 338 (Pa. 2020).

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

September 10, 2019. The trial court entered its opinion on September 19, 

2019.

5 The section of SORNA entitled “Legislative findings, declaration of policy and 

scope” explicitly asserts: “Sexual offenders pose a high risk of committing 

additional sexual offenses and protection of the public from this type of 

offender is a paramount governmental interest.” 42 Pa.C.S. § 9799.11(a)(4).
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procedural due process under Article 11 [sic] of the Pennsylvania 

constitution because it unlawfully impinges on the right to

reputation without notice and an opportunity to be heard?

[4.] Whether the trial court erred as a matter of law and abused 

its discretion in failing to find that SORNA denies [Appellant]

procedural due process under the Fifth and Fourteenth 

Amendments to the United States Constitution because it 

unlawfully restricts liberty and privacy without notice and an 

opportunity to be heard?

[5.] Whether the trial court erred as a matter of law and abused 

its discretion in failing to find that SORNA violates substantive due 

process under the state and federal constitutions, U.S. Const. 

Amend. XIV, Pa. Const. Art. I, § 1, because SORNA deprives

individuals of inalienable rights and fails to satisfy strict scrutiny?

[6.] Whether the trial court erred as a matter of law and abused 

its discretion in failing to find that SORNA constitutes criminal

punishment and therefore violates the separation of powers 

doctrine because it usurps the exclusive judicial function of

imposing a sentence?

[7.] Whether the trial court erred as a matter of law and abused 

its discretion in failing to find that SORNA contravenes the 5th, 

6th and 14th amendments of the United States Constitution and 

the corresponding protections of the Pennsylvania constitution 

because as a criminal punishment, SORNA cannot be imposed

without due process, notice and opportunity to contest its 

imposition, and ensuring that each fact necessary to support the 

mandatory sentence is submitted to a jury and proven beyond a

reasonable doubt pursuant to Apprendi v. New Jersey, 530 U.S. 

266 (2000) and Alleyne v. United States, 1570 U.S. 99 (2013)?

[8.] Whether the trial court erred as a matter of law and abused 

its discretion in failing to find SORNA constitutes criminal

punishment, therefore 42 Pa. C.S.A. § 9799.24(e)(3) violates the 

Sixth Amendment to the United States Constitution and the

corresponding provision of the Pennsylvania constitution as it 

enhances the degree of punishment beyond the otherwise 

proscribed SORNA requirements on a finding of clear and 

convincing evidence as opposed to beyond a reasonable doubt and 

[Appellant] does not have an ability to submit the question to a 

jury?
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[9.] Whether the trial court erred as a matter of law and abused 

its discretion in failing to find SORNA constitutes criminal penalties 

and therefore the imposition of mandatory lifetime sex offender

registration for nearly all Tier III offenses is a cruel and unusual

punishment in violation of the Eighth and Fourteenth Amendments 

to the United States Constitution and Article I, section 13 of the 

Pennsylvania constitution?

Appellant’s Brief at 5-9 (issues reordered to facilitate disposition) (headings, 

suggested answers, and unnecessary capitalization omitted).

Appellant first contends that “the trial court erred as a matter of law

and abused its discretion in failing to provide that [Appellant] can have contact 

with R.C. only at R.C.’s desire after they are of the age of majority or pursuant 

to R.C.’s counselor’s recommendation.” Id. at 64. Appellant’s brief provides 

no law in support of his challenge to the “no contact provision,” see id. at 64-

65, and, accordingly, this claim is waived. Pa.R.A.P. 2119(a) (argument shall 

include citation of authorities); Kelly v. Carman Corporation, 229 A.3d 634, 

656 (Pa. Super. 2020) (citing Commonwealth v. Spotz, 18 A.3d 244, 281 

n.21 (Pa. 2011) (without a “developed, reasoned, supported, or even 

intelligible argument[, t]he matter is waived for lack of development”

(emphasis added)); In re Estate of Whitley, 50 A.3d 203, 209 (Pa. Super. 

2012) (“The argument portion of an appellate brief must include a pertinent 

discussion of the particular point raised along with discussion and citation of 

pertinent authorities[; t]his Court will not consider the merits of an argument 

which fails to cite relevant case or statutory authority” (internal citations and 

quotation marks omitted)); Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa. 
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Super. 2006) (explaining appellant’s arguments must adhere to rules of 

appellate procedure, and arguments which are not appropriately developed 

are waived on appeal; arguments not appropriately developed include those 

where party has failed to cite any authority in support of contention)).

Appellant’s remaining claims concern his sexual offender registration 

requirements. Preliminarily, the question of whether current Subchapter H or 

Subchapter I of SORNA applies to Appellant is a crucial starting point. In the 

current case, Appellant committed his crimes between 2008 and 2015 – i.e., 

both before and after December 20, 2012. According to Commonwealth v. 

Alston, 212 A.3d 526, 528, 530 (Pa. Super. 2019), “when an appellant’s 

offenses straddle the effective dates of Subchapters H and I of SORNA” and 

“the jury did not specifically find the date of the offenses,” the application of 

Subchapter H is unconstitutional, as it “mirrors the version of SORNA found 

unconstitutional in” Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) 

(plurality); “instead, the court should apply Subchapter I.” However, Alston

involves jury trial convictions, where “the jury did not specifically find the date 

of the offenses[.]” Id. at 527-28. In the current action, Appellant pleaded 

guilty, and this Court has not issued a published opinion applying Alston to a 

guilty plea involving a range of offenses straddling the operative dates of 

Subchapters H and I. Accordingly, we cannot assume that Alston applies to 

the current appeal.
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“Appellant bore the burden of establishing the unconstitutionality of a 

statute, [and] it follows that Appellant was required to argue to the [lower] 

court which subchapter applies as a threshold for a constitutional challenge 

and to sustain his challenge with affirmative proof and legal support.” 

Commonwealth v. Beard, No. 3306 EDA 2019, unpublished memorandum 

at 17 (Pa. Super. filed December 30, 2020).6 In the current action, Appellant 

did not attempt to establish which subchapter applied. Accordingly, 

uncertainty remains as to whether Appellant is actually subject to current 

Subchapter H or Subchapter I, and Appellant did not preserve any arguments 

in the trial court nor address these issues on appeal. See 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.”). For these reasons, as in Beard, No. 3306 EDA 2019, 

at 8, we affirm.

Judgment of sentence affirmed.

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6 Pursuant to Pa.R.A.P. 126(b) (effective May 1, 2019):

(1) As used in this rule, “non-precedential decision” refers to an 

unpublished non-precedential memorandum decision of the 

Superior Court filed after May 1, 2019 . . .

(2) Non-precedential decisions as defined in (b)(1) may be cited 

for their persuasive value.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/17/2021