J-A10029-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHRISTOPHER L. HENNEGHAN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1218 EDA 2019

Appeal from the Order Entered March 18, 2019

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

No(s): CP-09-CR-0007376-2017

BEFORE: BOWES, J., SHOGAN, J., and PELLEGRINI, J.*

MEMORANDUM BY SHOGAN, J.: FILED: MARCH 22, 2021

Appellant, Christopher L. Henneghan, appeals from the order entered 

March 18, 2019, denying a petition filed pursuant to the Post Conviction Relief 

Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, challenging the constitutionality of 

the Sexual Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S. 

§§ 9799.10-9799.42. We vacate the order and remand for further 

proceedings.

The trial court set forth the pertinent procedural history of this case as 

follows:

Pending before this [c]ourt are the consolidated motions 

filed by seven defendants who have challenged the imposition of 

the provisions of Subchapter H of the revised Sexual Offender 

Registration and Notification Act (“SORNA”), codified in 42 Pa.C.S. 

§§ 9799.10, et seq., effective June 12, 2018, that require them to 

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* Retired Senior Judge assigned to the Superior Court.
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submit to an assessment and hearing to determine whether they 

should be classified as a sexually violent predator (“SVP”) and 

register as such. [Appellant] contend[s] that the recent revisions 

to SORNA that were enacted pursuant to the Act of June 12, 2018, 

P.L. 1952, No. 29 (“Act 29”) by the Pennsylvania General 

Assembly in response to the decisions by the Supreme Court of 

Pennsylvania in Commonwealth v. Muniz, 164 A.3d 1189, 1196-

98, 1201-04 ([Pa.] 2017), cert, denied sub nom. Pennsylvania v. 

Muniz, 138 S.Ct. 925 (2018), and the Superior Court of 

Pennsylvania in Commonwealth v. Butler, 173 A.3d 1212 (Pa. 

Super. 2017), appeal granted, 47 WAL 2018 (Pa. July 31, 2018), 

did not cure the constitutional infirmities of the registration 

requirements of 42 Pa.C.S.A. § 9799.24 that were determined by 

the Courts to exist in those cases. According to [Appellant], the 

current version of SORNA, enacted pursuant to Act 29, still

violates the United States and Pennsylvania Constitutions, and 

therefore [he] should be relieved of compliance with those 

assessment and registration requirements.

Due to the similarity and repetitive nature of the challenges 

to the legality of SORNA filed by ... seven [d]efendants, and in an 

effort to avoid duplicative proceedings and possibly inconsistent 

adjudications of issue[s], President Judge Jeffrey L. Finley granted 

the Commonwealth’s request, which was joined by defense 

counsel, to consolidate these matters. Judge Finley thereafter 

issued an Order on August 17, 2018, directing that all appropriate 

motions challenging SORNA were to be filed by August 31, 2018, 

and all supporting legal memoranda were to be filed on or before 

September 10, 2018. In addition, an en banc hearing, was 

scheduled for September 17, 2018.

* * *

The following is a brief procedural background [of the 

above-captioned matter:]

* * *

Commonwealth v. Christopher L. Henneghan

No. CP-09-CR,O007376-2017

On April 16, 2018, [Appellant] pleaded guilty to one (1) 

count of Rape Forcible Compulsion,30 one (1) count of Rape Threat 

of Forcible Compulsion,31 one (1) count of Involuntary Deviate 
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Sexual Intercourse (“IDSI”) Forcible Compulsion,32 one (1) count 

of IDSI Threat of Forcible Compulsion,33 one (1) count of Sexual 

Assault,34 one (1) count of Indecent Assault Without Consent of 

Other,35 one (1) count of Indecent Assault Forcible Compulsion,36

one (1) count of Indecent Assault Threat of Forcible Compulsion,37

one (1) count of Unlawful Restraint Serious Bodily Injury,38 one 

(1) count of False Imprisonment,39 and one (1) count of Terroristic 

Threats with Intent to Terrorize Another.40 After the entry of his 

guilty pleas, the trial court judge, the Honorable Clyde W. Waite, 

sentenced [Appellant] to a period of incarceration of not less than 

ten (10) years but not more than twenty (20) years on Count 1, 

Rape Forcible Compulsion, and to a period of incarceration of not 

less than two (2) years but not more than five (5) years on Count

11, Terroristic Threats, consecutive to his sentence under Count 

1. In addition, [Appellant] was sentenced to ten (10) years of 

probation for Count 3, IDSI Forcible Compulsion, consecutive to 

his sentences for Counts 1 and 11, and he was ordered to register 

as a Tier[-]III sexual offender. Judge Waite also issued an order 

directing the SOAB to perform an assessment of [Appellant] to 

determine if he is a sexually violent predator.

30 18 Pa.C.S.A. § 3121(a)(1)

31 18 Pa.C.S.A. § 3121(a)(2)

32 18 Pa.C.S.A. § 3123(a)(1)

33 18 Pa.C.S.A. § 3123(a)(2)

34 18 Pa.C.S.A. § 3124.1

35 18 Pa.C.S.A. § 3126(a)(1)

36 18 Pa.C.S.A. § 3126(a)(2)

37 18 Pa.C.S.A. § 3126(a)(3)

38 18 Pa.C.S.A. § 2902(a)(1)

39 18 Pa.C.S.A. § 2903(a)

40 18 Pa.C.S.A. § 2706(a)(1)

On June 29, 2018, the Commonwealth filed a Petition for 

Hearing to Determine Defendant’s Sexual Offender Classification. 

On September 4, 2018, [Appellant] filed his “Motion to Declare 

SORNA 42 Pa.C.S.A. 9799 et seq. Unconstitutional, Motion to 

Vacate/Bar SOAB Evaluation, Objection to Commonwealth’s 

Petition for Sexually Violent Predator Hearing, Motion for 

Continuance/Abeyance/Evidentiary Hearing and/or Motion to Bar 

Imposition,” [which replicated the motions of other defendants 

challenging the SORNA registration requirements].

Trial Court Opinion, 12/17/18, at 1-10.
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The trial court held an en banc hearing on September 17, 2018. 

Thereafter, Appellant and the Commonwealth filed additional briefs with the 

trial court. On December 17, 2018, the en banc panel filed a memorandum 

opinion holding that the current version of SORNA, as amended by Act 29, 

was punitive and therefore, unconstitutional. The Commonwealth filed a 

motion for reconsideration arguing that simply because Act 29 was punitive it 

is not unconstitutional. The Commonwealth further noted that the en banc

court’s determination failed to identify what constitutional provision was 

violated as a result of Act 29 being deemed punitive.

On February 13, 2019, the trial court held a brief hearing and ordered 

the filing of additional briefs. The Commonwealth filed a brief on February 22, 

2019, and Appellant filed a brief on February 25, 2019. On March 18, 2019, 

the en banc panel of the trial court filed an order clarifying the implications of 

the court’s determination filed on December 17, 2018. The en banc court’s 

March 18, 2019 order vacated the portion of the December 17, 2018 

memorandum opinion that held Act 29 to be unconstitutional. The court 

further clarified that although punitive, Subchapter H of Act 29 is constitutional 

except as to SVP determinations.

Appellant filed this appeal on April 17, 2019. Appellant and the trial 

court complied with Pa.R.A.P. 1925.

Appellant presents the following issues for our review:

A. Whether the Lower Court erred when it failed to find that 

ACT 29 and its registration requirements violated the United 
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States Constitution and the enhanced protections under the 

Pennsylvania Constitution on its face and as applied?

B. Whether the Lower Court erred when it failed to find that 

ACT 29 and its registration requirements violated the United 

States and Pennsylvania Constitution Due Process prohibition 

against ex post facto laws?

C. Whether the Lower Court erred when it failed to find that 

ACT 29 and its registration requirements violated United States 

and Pennsylvania Constitutional Due Process protections because 

it deprives Appellant of the Right to Reputation under the 

Pennsylvania Constitution, it creates an irrebuttable presumption, 

treats all offenders universally as high-risk, violates individualized 

punishment, overly inclusive of offenders and charges, ignores 

reasonable alternative means exist to identify offender risk, 

denies any meaningful opportunity to be heard, exceeds the least 

restrictive means requirement, and otherwise violates substantive 

Due Process protections?

D. Whether the Lower Court erred when it failed to find that 

ACT 29 and its registration requirements violate the United States 

and Pennsylvania Constitutions as it constitutes cruel and unusual 

punishment where registration is based upon empirically false 

myths, fails to deter first time offenders, fails to reduce recidivism, 

threatens public safety, forces registrants and their families to 

suffer, creates an impassable barrier to reintegration into lawabiding society, and fails to address each offender individually?

E. Whether the Lower Court erred when it failed to find that 

ACT 29 and its registration requirements violate the United States 

and Pennsylvania Constitutions’ Separation of Powers Doctrine, as 

it gave judicial powers to the Legislature and Pennsylvania State 

Police?

F. Whether the Lower Court erred when it failed to find that 

ACT 29 and its registration requirements violated United States 

and Pennsylvania Constitutions’ Due Process provisions as it 

increased the maximum sentence without proof beyond a 

reasonable doubt to a jury in violation of Alleyne v. United 

States, 570 U.S. 99 (2013), and that said provisions are not 

severable?

Appellant’s Brief at 4-5.
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Prior to considering the issues set forth by Appellant, we address the 

procedural posture of this matter as it implicates our jurisdiction. Here, 

Appellant’s judgment of sentence was entered on April 16, 2018. Therefore,

in order to be timely Appellant had to file a post-sentence motion on or before 

April 26, 2018. See Pa.R.Crim.P. 720(A)(1) (providing that “a written postsentence motion shall be filed no later than 10 days after imposition of 

sentence”). Rule 720 further instructs that “[i]f the defendant does not file a 

timely post-sentence motion, the defendant’s notice of appeal shall be filed 

within 30 days of imposition of sentence ... .” Pa.R.Crim.P. 720(A)(3). See

Pa.R.A.P. 903(a) (notice of appeal shall be filed within thirty days after the 

entry of the order from which the appeal is taken). Here, Appellant failed to 

file a timely post-sentence motion. Furthermore, Appellant failed to file a 

notice of appeal within thirty days of the entry of his judgment of sentence, 

i.e., May 16, 2018. Rather, on September 4, 2018, after his appeal period 

expired, Appellant filed a motion with the trial court challenging the 

constitutionality and legality of SORNA. We further observe this Court has 

long held that “all motions filed after a judgment of sentence is final are to be 

construed as PCRA petitions.” Commonwealth v. Taylor, 65 A.3d 462, 466 

(Pa. Super. 2013) (citing Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. 

Super. 2007)). Indeed, it is permissible for Appellant to challenge SORNA in 

a PCRA petition, although the PCRA is not the exclusive method for challenging 

sexual offender registration statutes. Commonwealth v. Lacombe, 234 
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A.3d 602, 617-618 (Pa. 2020) (rejecting Commonwealth’s argument that 

PCRA is the sole procedural mechanism available for challenging SORNA; 

noting that courts have entertained challenges to SORNA on direct appeal, in 

PCRA petitions, or in other types of petitions). Accordingly, we consider 

Appellant’s motion to be a properly filed PCRA petition.

We next turn to the issues presented by Appellant. Herein, Appellant 

raises challenges to the constitutionality of the order requiring him to register 

under SORNA as a Tier-III offender.

Commonwealth v. Mickley, 240 A.3d 957 (Pa. Super. 2020), instructs 

that the proper remedy herein is to remand for an evidentiary hearing on 

Appellant’s challenges to SORNA. In Mickley, this Court observed that the 

appellant’s constitutional challenges to SORNA were identical to arguments 

raised in Commonwealth v. Torsilieri, 232 A.3d 567 (Pa. 2020). The 

Torsilieri Court did not reach the merits of any of the constitutional claims at 

issue, determining instead that the factual record was not sufficiently 

developed in the trial court. The Court in Torsilieri concluded that a remand 

was appropriate “to allow the parties to address whether a consensus has 

developed to call into question the relevant legislative policy decisions 

impacting offenders’ constitutional rights.” Id. at 587. Based on Torsilieri, 

Mickley held:

Here, despite defense counsel’s attempt, no evidence was 

presented at the hearing on Mickley’s post-sentence motion. 

Thus, in accordance with Torsilieri, we vacate the order denying 

Mickley’s post-sentence motion and remand for a hearing at which 
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the parties can present evidence for and against the relevant 

legislation determinations discussed above.

Mickley, 240 A.3d at 963; see also Commonwealth v. Asher, ___ A.3d 

___, 2020 PA Super 293, at *4 (Pa. Super. filed December 21, 2020) (citing 

Torsilieri and Mickley and concluding that where the defendant preserved 

his constitutional challenges to SORNA, but the trial court denied relief without 

developing a factual record, remand was proper for a hearing at which the 

parties could present evidence for and against relevant legislative 

determinations).

Upon review of the record, we conclude that the same remedy is 

appropriate here. As noted by the Commonwealth, the SORNA issues raised 

by Appellant are the same as those raised in Torsilieri. Commonwealth’s 

Brief at 19 n.8. At the en banc hearing held on September 17, 2018, 

Appellant’s counsel noted that the record was not complete and sought to 

present into evidence various affidavits “relevant to the due process 

challenges.” N.T., 9/17/18, at 5. Appellant’s counsel indicated the desire to 

create a record similar to Torsilieri. Id. at 5-6. However, the Commonwealth 

was hesitant to stipulate to the admission of the evidence. After extensive 

discussion and a brief recess, the en banc court reached the following 

conclusion:

We’ve decided [to] proceed with the remaining arguments 

but not proceed on the due process issue today, and we’re 

ordering both sides to meet within ten days and to endeavor to 

see whether or not you can reach an agreement as to what the 

record will be, whether there will be a stipulation as to the 
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admissibility of affidavits and curriculum vitae for experts for us 

to consider.

The second thing we’re asking you to meet and discuss is 

for what purpose are we to consider those expert reports. See if 

you can reach an agreement, and if you cannot, you’ll let us know 

that as well and what your position is. And then we can decide 

how we proceed on the due process issue.

Id. at 32-33.

The record further reflects that the parties were not able to reach an 

agreement as requested by the en banc court. Moreover, the en banc court 

failed to address the due-process claims presented by Appellant in either its 

memorandum opinion entered on December 17, 2018, or in its subsequent 

order entered March 18, 2019. Hence, the proper remedy under these 

circumstances is to remand for a hearing at which the parties can present

evidence relating to Appellant’s SORNA arguments.

Order vacated and case remanded for proceedings consistent with 

Torsilieri. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/22/21