J-S73044-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

*Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

v.

TOMAS JAVIER QUINTANILLA-PINEDA,

 Appellant

 

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA

No. 736 MDA 2017

Appeal from the Judgment of Sentence February 27, 2017

in the Court of Common Pleas of York County 

Criminal Division at No(s): CP-67-CR-0004448-2016

BEFORE: OLSON, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 29, 2018

Tomas Javier Quintanilla-Pineda (Appellant) appeals from his February 

27, 2017 judgment of sentence of 13 to 26 years’ incarceration following his 

nolo contendere plea to rape, involuntary deviate sexual intercourse (IDSI), 

and theft by unlawful taking. After review, we vacate the portion of 

Appellant’s sentence requiring him to comply with SORNA, affirm in all other 

respects, and remand for the sole purpose of having the trial court determine 

whether any registration requirements exist.

The Commonwealth offered the following recitation of facts during 

Appellant’s plea hearing.

[O]n December 17th of 2011, the victim... entered her friend’s 

apartment located in West York across from the Reliance Cafe. 

Her friend left to go meet her husband at a bar across the street. 

At that point the victim observed [Appellant] at the top of the 

stairs on the second floor. She went up into the bathroom on the 

third floor. While she [was] in the bathroom on the third floor, 
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[Appellant] came up behind her, grabbed her by the throat, threw 

her to the ground, [and] slammed her forehead on the floor. As 

she tried to get away, he pulled her back down, [and] pulled her 

pants down. ... [Appellant] then anally penetrated her with his 

penis and then penetrated her vagina and then back to her anus. 

During the assault, the victim called 911 on her cell phone. 

There [was] a recording of the assault occurring that was recorded 

by 911. While the 911 [dispatcher asked] for [the victim’s]

address, [Appellant] had his hand covering [the victim’s] mouth 

so that she [was] unable to speak. 

... [Bill Imler] would testify that he returned home to this 

apartment. When he return[ed] home, he [came] up the stairs to 

this assault occurring. He confronted [Appellant], who [sic] he 

recognized. At that point [Appellant] took off with the victim’s cell 

phone. You are able to hear in the 911 call someone running, and 

then that call is disconnected. 

Also, witness Lorraine Miller... would testify that [Appellant] 

was in her apartment that night, that [Appellant] worked at 

Reliance Cafe, and she would be able to identify him.

After this report came in, law enforcement ... went to 

Reliance Cafe, searched for [Appellant and were] able to obtain 

[Appellant’s] information from Reliance Cafe. They [did] an 

exhaustive search of York in order to find [Appellant]. They 

[were] unable to do that. However, charges [were] filed ... .

Also, [the Commonwealth] would [have presented] at trial 

a SAFE [Sexual Assault Forensic Examiner] exam [where] 

evidence was collected, sent up to PSP [Pennsylvania State 

Police]. DNA evidence was sent up to them.

On January 22nd of 2013, there was a CODIS [Combined 

DNA Index System] hit on the DNA that was collected from the 

victim. It came back to [Appellant], who was located in California 

at that time. ...

[Appellant was] eventually extradited back to Pennsylvania. 

Another sample [was] obtained from [Appellant]. That [was] sent 

up to PSP, and on July 6th of this year, [the Commonwealth] did 

receive the DNA analysis from PSP that did confirm that ... the 
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semen sample that was collected from our victim was a 

combination of her DNA as well as [Appellant’s]. 

N.T., 11/23/2016, at 3-5.

On November 23, 2016, Appellant pled nolo contendere as indicated 

above. Appellant’s plea was accepted by the trial court, and on February 27, 

2017, Appellant was sentenced to 61⁄2 to 13 years of incarceration for rape; 

61⁄2 to 13 years of incarceration for IDSI, consecutive to the sentence of 

incarceration for rape; and 12 months of probation for theft, concurrent to the 

sentences of incarceration. At the time Appellant pled nolo contendere, rape

and IDSI were enumerated Tier III offenses under SORNA, and required

lifetime registration as a sexual offender. 42 Pa.C.S. § 9799.14(d); 42 Pa.C.S. 

§ 9799.15(a)(3). At sentencing, Appellant signed a Megan’s Law Registration 

Form, stating that he understood his registration requirements.

Appellant filed a post-sentence motion on March 2, 2017. The trial court 

held a hearing on April 3, 2017, and denied Appellant’s post-sentence motion 

that same day. Appellant timely filed a notice of appeal. Both Appellant and 

the trial court have complied with the mandates of Pa.R.A.P. 1925. 

Appellant presents the following questions for our consideration.

[1] Whether the [trial] court improperly gave [Appellant] two 

aggravated-range sentences, to be served consecutively, based 

on conduct inherent in the offenses: the violence inflicted in the 

course of rape by forcible compulsion and IDSI by forcible 

compulsion.

[2] Whether SORNA, or any other sex offender registration 

scheme, can legally apply to [Appellant] in light of the 
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Pennsylvania Supreme Court’s holding in Commonwealth v. 

Muniz that retroactive application of SORNA’s registration 

provisions violates the ex post facto clauses of the United States 

and Pennsylvania Constitutions.

Appellant’s Brief at 4 (suggested answers omitted).

Appellant’s first claim implicates the discretionary aspects of his 

sentence. We consider this claim mindful of the following. 

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. In this context, an abuse 

of discretion is not shown merely by an error in judgment. Rather, 

the appellant must establish, by reference to the record, that the 

sentencing court ignored or misapplied the law, exercised its 

judgment for reasons of partiality, prejudice, bias or ill will, or 

arrived at a manifestly unreasonable decision.

* * *

When imposing sentence, a court is required to consider the 

particular circumstances of the offense and the character of the 

defendant. In considering these factors, the court should refer to 

the defendant’s prior criminal record, age, personal characteristics 

and potential for rehabilitation. 

Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014) 

(internal citations and quotation marks omitted). 

An appellant is not entitled to the review of challenges to the 

discretionary aspects of a sentence as of right. Rather, an appellant 

challenging the discretionary aspects of his sentence must invoke this Court’s 

jurisdiction. We determine whether the appellant has invoked our jurisdiction 

by considering the following four factors: 
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(1) whether 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. 720; (3) whether 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. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014) 

(some citations omitted). 

Here, Appellant filed a notice of appeal after preserving the issue by 

filing a motion to modify sentence, and his brief contains a statement pursuant 

to Pa.R.A.P. 2119(f). We thus consider whether Appellant raised a substantial 

question that his sentence is inappropriate.

In his Pa.R.A.P. 2119(f) statement, Appellant claims that his sentence 

raises a substantial question because the trial court “considered factors 

already included in the guidelines.” Appellant’s Brief at 13 (quoting 

Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)). 

Specifically, Appellant alleges that the trial court imposed “two aggravatedrange terms of incarceration due to the violence he inflicted—a factor inherent 

in both offenses.” Id. A claim that a trial court relied on impermissible factors

in fashioning a sentence raises a substantial question. Commonwealth v. 

Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006). Thus, we conclude that 

Appellant has presented a substantial question for our review, and proceed to 

evaluate Appellant’s sentencing argument on its merits.
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Here, Appellant was sentenced to two consecutive sentences in the 

aggravated range of the sentencing guidelines for rape and IDSI. A 

sentencing court “has wide discretion in sentencing and can, on the 

appropriate record and for the appropriate reasons, consider any legal factor 

in imposing a sentence in the aggravated range.” Id. at 1275.

Since Appellant was sentenced within the guidelines, we 

may reverse only if application of the guidelines is clearly 

unreasonable. The [Commonwealth v.] Walls[, 926 A.2d 957 

(Pa. 2007)] Court noted that the term “unreasonable,” while not 

defined in the Sentencing Code, generally means a decision that 

is either irrational or not guided by sound judgment. The Court 

continued that the context of the term’s use in section 9781 

indicates that the legislature intended the concept 

of unreasonableness to be inherently a circumstance-dependent 

concept that is flexible in understanding and lacking precise 

definition.

The Supreme Court held that a sentence can be deemed 

unreasonable after review of the four elements contained in 

section 9781(d) or if the sentencing court failed to take into 

account the factors outlined in 42 Pa.C.S. § 9721(b). [Subs]ection 

9721(b) states in pertinent part:

[T]he court shall follow the general principle that 

the sentence imposed should call for confinement that 

is consistent with the protection of the public, the 

gravity of the offense as it relates to the impact on the 

life of the victim and on the community, and the 

rehabilitative needs of the defendant. The court shall 

also consider any guidelines for sentencing adopted 

by the Pennsylvania Commission on Sentencing[.]

In conclusion, our Supreme Court in Walls stated that when 

the proper standard of review is utilized, rejection of 

a sentencing court’s imposition of sentence on unreasonableness 

grounds [should] occur infrequently, whether the sentence is 

above or below the guidelines ranges.
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Commonwealth v. Macias, 968 A.2d 773, 777 (Pa. Super. 2009) (some 

citations and quotation marks omitted). In reviewing the record on appeal, 

this Court considers:

(1) The nature and circumstances of the offense and the history 

and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the 

defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

Here, the standard range of the guidelines for both rape and IDSI was

4 to 51⁄2 years of incarceration. N.T., 2/27/2017, at 8. Appellant was 

sentenced in the aggravated range at both counts to 61⁄2 to 13 years of 

incarceration. The trial court reviewed the presentence investigation report, 

and, thus, “we presume that the court properly considered and weighed all 

relevant factors in fashioning [Appellant’s] sentence.” Commonwealth v. 

Baker, 72 A.3d 652, 663 (Pa. Super. 2013). Further, the record reveals that 

the trial court was cognizant of the sentence it was imposing. At sentencing, 

the trial court set forth its reasoning for imposing a sentence within the 

aggravated guideline range.

The nature of the offense, you know, followed somebody 

home and went into the house where [she was], attending to their 

nightly duties, and you violently raped [her]. I’m not so sure there 

is such a thing as a friendly rape. Quite frankly, in my mind all 
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rapes are violent. But this went beyond your means to achieve 

your goal. 

I agree, but for the introduction of the third person in the 

household, the rape would have continued. I can’t speculate on 

what you did, but I cannot take any exception to the victim saying 

that her fear was that she was going to be killed. ...

So I do believe that a sentence in the aggravated range is 

appropriate because of the violence of the offense.

N.T., 2/27/2017, at 12.

Appellant argues that the violence was already factored into the 

sentencing guidelines because he was convicted of rape and IDSI by forcible 

compulsion, and thus the trial court erred in basing his aggravated range 

sentence on the violence inflicted. However, violence is not necessary for 

forcible compulsion. 

It is well-established that in order to prove the 

forcible compulsion component, the Commonwealth must 

establish, beyond a reasonable doubt, that the defendant used 

either physical force, a threat of physical force, or psychological 

coercion, since the mere showing of a lack of consent does not 

support a conviction for rape ... by forcible compulsion. [O]ur 

Supreme Court stated that forcible compulsion includes not only 

physical force or violence, but also moral, psychological or 

intellectual force used to compel a person to engage in sexual 

intercourse against that person’s will. Further, the degree of force 

required to constitute rape is relative and depends on the facts 

and particular circumstances of a given case.

Commonwealth v. Eckrote, 12 A.3d 383, 387 (Pa. Super. 2010) (citations 

and quotation marks omitted). 

In its 1925(a) opinion, the trial court found that Appellant “used an 

atypical amount of force that was larger than necessary to fulfill the forcible 
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compulsion elements of [r]ape and IDSI.” Trial Court Opinion, 6/23/2017, at 

9. Specifically, 

Appellant here grabbed the [victim’s] throat, threw the 

victim to the ground, and [] slammed her forehead on the floor. 

[]Appellant came into the home while no one else was there 

beside the victim and fled the state shortly thereafter. The victim 

reported that she thought she was going to die during the attack. 

The reason that the assault stopped is because of a third party 

returning to the home. This amount of force here is significantly 

more than just climbing over the victim, which was the physical 

force used in Eckrote.

Id. at 9-10. After the initial assault wherein Appellant grabbed the victim’s 

throat, threw her to the ground, and slammed her head on the floor, Appellant 

used forcible compulsion by pulling her back to the floor as she tried to get 

away, and forcibly removing her pants. Moreover, Appellant covered the 

victim’s face with his hand, silencing her as she tried to ask the 911 dispatcher 

for help. 

We agree that the violence cited by the trial court was not included in 

the sentencing guidelines’ consideration of normal forcible compulsion, and 

thus the trial court’s reliance on that violence in fashioning Appellant’s 

aggravated-range guidelines sentences was not clearly unreasonable. Walls, 

926 A.2d at 967 (holding that factors of victim’s precise age and victim being 

entrusted to defendant’s care were not subsumed within sentencing guidelines 

and thus could justify an above-guideline sentence).

Appellant alleges in his second claim that he should not be subjected to 

any sexual offender registration scheme in light of Commonwealth v. Muniz,
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164 A.3d 1189 (Pa. 2017) (Opinion Announcing the Judgment of the Court)

and Commonwealth v. Butler, __ A.3d __, 2017 WL 4914155 (Pa. Super. 

Oct. 31, 2017).1 Appellant’s Brief at 24; Appellant’s Rule 2501(b) PostSubmission Communication, 11/1/2017. Appellant argues that because he 

committed the instant rape and IDSI before the effective date of SORNA, the 

registration requirements of SORNA were applied ex post facto. 

We consider Appellant’s ex post facto claim mindful of the following. 

Critical to relief under the ex post facto clause is not an individual’s 

right to less punishment, but the lack of fair notice and 

governmental restraint when the legislature increases punishment 

beyond what was prescribed when the crime was consummated. 

Based on these concerns, [in Calder v. Bull, 3 U.S. 386 (1798),] 

Chief Justice Chase set out four categories of laws that violate 

such prohibitions:

1st. Every law that makes an action done before the 

passing of the law, and which was innocent when 

done, criminal; and punishes such action. 2nd. Every 

law that aggravates a crime, or makes it greater than 

it was, when committed. 3rd. Every law that 

changes the punishment, and inflicts a greater 

punishment, than the law annexed to the crime, 

when committed. 4th. Every law that alters the legal 

rules of evidence, and receives less, or different, 

testimony, than the law required at the time of the 

commission of the offense, in order to convict the 

offender.

 

1 Appellant acknowledged that he did not raise his Muniz claim within his Rule 

1925(b) statement of errors complained of on appeal, which was filed on May 

23, 2017, because Muniz was not decided until July 17, 2017. Appellant’s 

Brief at 4. While Appellant raises this claim for the first time on appeal, we 

may review it. See e.g. Butler, 2017 WL 4914155 at *2 (holding that while 

issues not raised before the trial court are generally waived for appellate 

purposes, a challenge to the legality of a sentence based on Muniz need not 

be preserved in the trial court in order to be reviewable). 
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Furthermore, two critical elements must be met for a criminal or

penal law to be deemed ex post facto: it must be retrospective, 

that is, it must apply to events occurring before its enactment, 

and it must disadvantage the offender affected by it. As such, 

[o]nly those laws which disadvantage a defendant and fall within 

a Calder category are ex post facto laws and constitutionally 

infirm. Commonwealth v. Young, [] 637 A.2d 1313, 1318 

([Pa. ]1993) (emphasis in original). The ex post facto clauses of 

the United States and Pennsylvania Constitutions are implicated 

here because a holding rendering the effects of SORNA’s 

registration requirements punitive would place the statute into the 

third Calder category: application of the statute would inflict 

greater punishment on appellant than the law in effect at the time 

he committed his crimes.

Muniz, 164 A.3d at 1195–96 (quotation marks, unnecessary capitalization, 

and some citations omitted) (emphasis added). “The Muniz Court held that 

Pennsylvania’s SORNA is an unconstitutional ex post facto law when applied 

retroactively to those sexual offenders convicted of applicable crimes before 

the act’s effective[] date and subjected to increased registration requirements 

under SORNA after its passage.” Commonwealth v. McCullough, __ A.3d 

__, 2017 WL 5184490 at *1 (Pa. Super. Nov. 9, 2017); Commonwealth v. 

Hart, __ A.3d __, 2017 WL 5246752 at *6 n.9 (Pa. Super. Nov. 13, 2017) 

(holding that “the binding precedent emerging from Muniz is confined to the 

determination that SORNA’s registration requirement is punishment that runs 

afoul of the ex post facto clause of the Pennsylvania Constitution when applied 

retroactively”).

Appellant committed the instant rape and IDSI on December 17, 2011. 

At that time Megan’s Law III applied, which would require Appellant to register 
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with the state police for the remainder of his life as to both rape and IDSI. On 

December 20, 2011, the legislature enacted SORNA. See 42 Pa.C.S. §§ 

9799.10 and 9799.41. SORNA became effective on December 20, 2012, prior 

to Appellant’s plea and sentencing but after he committed the instant offenses. 

SORNA increased the registration period for certain crimes, but the 

registration requirement for those convicted of rape and IDSI remained a

lifetime registration. Compare 42 Pa.C.S. § 9795.1(b)(2) (expired) with 42 

Pa.C.S. § 9799.14(d) and § 9799.15(a)(3). Although it did not increase the 

period of registration for rape and IDSI, SORNA did enhance registration 

requirements for Tier III offenses, including quarterly in-person reporting and 

dissemination of personal information via an Internet website. Muniz, 164 

A.3d at 1210-11, (citing Commonwealth v. Perez, 97 A.3d 747, 765 (Pa. 

Super. 2014) (Donohue, J. concurring)). These additional, more stringent 

registration requirements constitute a greater punishment than what would 

have been imposed under Megan’s Law III. As such, retroactive application 

of these enhanced registration requirements runs afoul of constitutional ex 

post facto prohibitions. See Muniz, 164 A.3d at 1193, 1216. 

Appellant pled guilty after SORNA went into effect, and thus the trial 

court purported to impose the new registration requirements and other 

provisions of SORNA on him retroactively for crimes he committed when 

Megan’s Law III was applicable. Because Appellant committed his crimes at 

a time when registration requirements for rape and IDSI were less onerous,
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and thus the punishment was lesser, SORNA cannot be applied retroactively 

to Appellant without violating the ex post facto clause of the Pennsylvania 

constitution. See Muniz, 164 A.3d at 1192-93. Thus, we are constrained to 

agree with Appellant that he is not required to register under SORNA.

As to the second part of Appellant’s claim, this Court held in Butler that 

subsection 9799.24(e)(3) of SORNA, regarding the procedure for determining 

whether a defendant is a sexually violent predator, violates the federal and 

state constitutions “because it increases the criminal penalty to which a 

defendant is exposed without the chosen fact-finder making the necessary 

factual findings beyond a reasonable doubt.” 2017 WL 4914155 at *6. 

Appellant was specifically not designated as a sexually violent predator under 

42 Pa.C.S. § 97993.24. Thus, the holding in Butler does not apply to 

Appellant, and it affords Appellant no relief. N.T., 2/27/2017, at 15.

We vacate that portion of Appellant’s sentence requiring him to comply 

with SORNA. The remainder of his judgment of sentence is affirmed. 

Judgment of sentence affirmed in part and vacated in part. Case 

remanded. Jurisdiction relinquished. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/29/2018