J. S70006/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

RAYMOND BENDER, JR., : No. 980 EDA 2018

:

 Appellant :

Appeal from the Judgment of Sentence, February 13, 2018,

in the Court of Common Pleas of Monroe County

Criminal Division at No. CP-45-CR-0001770-2017

BEFORE: GANTMAN, P.J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 30, 2019

Raymond Bender, Jr., appeals from the February 13, 2018 judgment 

of sentence entered in the Court of Common Pleas of Monroe County 

following entry of his nolo contendere plea to one count of unlawful 

contact with a minor-sexual offense. The trial court sentenced appellant to a 

term of incarceration of 22 to 84 months. We affirm.

The trial court set forth the following:

On August 17, 2017, Appellant was charged by 

Criminal Information with one count each of 

Aggravated Indecent Assault—Complainant less than 

16,[Footnote 1] Aggravated Indecent Assault without 

Consent,[Footnote 2] Indecent Assault without 

Consent of Other,[Footnote 3] Unlawful Contact with 

Minor—Sexual Offenses,[Footnote 4] Corruption of 

Minors—Defendant Age 18 or Above,[Footnote 5]

and Indecent Assault—Person Less than 16 Years of 

Age.[Footnote 6] The charges arise from a 

February 5, 2017, and February 16, 2017, incident 
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at a residence in Chestnuthill Townships [sic], 

Monroe County, Pennsylvania, involving a minor 

victim.

[Footnote 1] 18 Pa.C.S.A. § 3125(A)(8).

[Footnote 2] 18 Pa.C.S.A. § 3125(A)(1).

[Footnote 3] 18 Pa.C.S.A. § 3126(A)(1).

[Footnote 4] 18 Pa.C.S.A. § 6318(A)(1).

[Footnote 5] 18 Pa.C.S.A. § 6301(A)(1)(ii).

[Footnote 6] 18 Pa.C.S.A. § 3126(A)(8).

On September 5, 2017, this case was joined for trial 

via Notice of Joinder with case number 1868 CR 

2017.

On November 6, 2017, Appellant pleaded 

nolo contendere to Amended Count I of the 

Criminal Information: Unlawful Contact with a Minor–

Sexual Offenses.[Footnote 7] On the same day, 

[w]e ordered the Sexual Offenders Assessment 

Board to conduct an evaluation of the Appellant to 

determine if the Appellant is a sexually violent 

predator (“SVP”) prior to the imposition of sentence. 

Appellant filed a Motion to Preclude Evaluation on 

December 1, 2017, requesting that this Court 

preclude any evaluation being performed to make a 

determination into whether Appellant is an SVP. A 

hearing was held on Appellant’s Motion on January 9, 

2018, and counsel were ordered to file briefs in 

support of their argument specifically regarding the 

use of an evaluation for purposes of a presentence 

investigation report and sentencing. After review of 

both parties’ briefs, Appellant’s Motion was denied 

from the bench at Appellant’s sentencing hearing. 

[Footnote 7] The Commonwealth filed 

an Amended Criminal Information on 

November 13, 2017, charging Appellant 

with Unlawful Contact with a Minor–

Sexual Offenses (18 Pa.C.S.A. 

§ 6318(A)(1)).

On February 13, 2018, [w]e sentenced Appellant to 

undergo a period of incarceration in a state 
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correctional institution for a period of not less than 

22 months nor more than 84 months, said sentence 

to run consecutive with the sentence imposed in case 

number 1868 CR 2017 for an aggregate sentence of 

not less than 52 months nor more than 

204 months.[Footnote 8] Additionally, Appellant was 

found to be classified as a Tier 2 sexual offender 

subject to a 25-year registration period pursuant to 

SORNA1 as set forth at 42 Pa.C.S.A. § 9799.23.

[Footnote 8] In case number 1770 CR 

2017, [w]e sentenced Appellant to a 

period of incarceration in a state 

correctional institution of not less than 

15 months nor more than 60 months for 

Amended Count I of the Criminal 

Information—Corruption of Minors, and 

not less than 15 months nor more than 

60 months for Amended Count II of the 

Criminal Information—Corruption of 

Minors, said sentences to run 

consecutively for an aggregate sentence 

of not less than 30 months nor more 

than 120 months.

On February 20, 2018, Appellant filed a Motion for 

Reconsideration of Sentence, which was denied by 

this Court’s Order on the same day. On March 20, 

2018, Appellant filed a Notice of Appeal to the 

Superior Court appealing our September 13, 2018, 

Sentencing Order, and our February 20, 2018, Order 

Denying Appellant’s Motion for Reconsideration of 

Sentence. We ordered Appellant to file a Statement 

Pursuant to Pa.R.A.P. 1925(b) within 21 days and 

Appellant filed said statement on April 10, 2018.

Trial court opinion, 5/22/18 at 1-3 (citation to notes of testimony omitted).

Appellant raises the following issues for our review:2

 

1 The Sexual Offender Registration and Notification Act (“SORNA”).

2 We have re-ordered appellant’s issues for ease of disposition.
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1. Did the [trial] court abuse its discretion at 

sentencing by allowing the Sexually Violent 

Predator Assessment to be considered at the 

time of sentencing for purposes other than 

determination if [appellant] was a Sexually 

Violent Predator, where all of the information is 

already available to the court and [appellant]

did not have a chance to confront the person

who did the evaluation about their opinions 

and professional determinations, when a 

[d]efendant cannot be declared a Sexually 

Violent Predator?

[2.] Did the [trial] [c]ourt abuse its discretion at 

sentencing when it is a violation of 

[appellant’s] due process constitutional rights 

under the United States and Pennsylvania 

Constitutions where SORNA’s requirements are 

punitive and not just civil requirements?

[3.] Is it a violation of [appellant’s] due process 

constitutional rights under the United States 

and Pennsylvania Constitutions where 

mandatory reporting compliance with SORNA’s 

requirements are an affirmative restraint upon 

[appellant] and such restraint is punitive?

[4.] Did the [trial] [c]ourt abuse its discretion at 

sentencing when it required [appellant] to 

register under SORNA?

[5.] Is it a violation of [appellant’s] due process 

constitutional rights under the United States 

and Pennsylvania Constitutions where 

compliance with SORNA’s requirements are 

invested in the state police?

Appellant’s brief at 7.

In his first four issues, appellant relies on our supreme court’s decision 

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

cert. denied sub nom. Pennsylvania v. Muniz, 138 S.Ct. 925, 200 L.Ed. 
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2d 213, 2018 WL 491630 (U.S. 2018), and this court’s decision in 

Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super. 2017), to argue that 

his sentence is unconstitutional. The sum and substance of these complaints 

is that the trial court abused its discretion when it considered the 

assessment that the sexual offenders assessment board (“SOAB”) performed 

on appellant prior to imposing sentence because a SOAB assessment is 

unconstitutional pursuant to this court’s decision Butler and that because 

our supreme court in Muniz held that SORNA’s registration requirements are 

punitive, they cannot be applied to him. Appellant is mistaken.

In Muniz, our supreme court held that SORNA’S registration

requirements constitute criminal punishment, as opposed to a mere civil 

penalty, and therefore, their retroactive application violates the ex post 

facto clause of the U.S. Constitution. Muniz, 164 A.3d at 1192. 

Thereafter, in Butler, this court concluded that because Muniz held 

SORNA’s registration requirements are punitive and an SVP designation 

increases the registration period, trial courts cannot apply SORNA’s 

increased registration requirement to SVPs because SORNA does not require 

a fact-finder to determine, beyond a reasonable doubt, that the defendant is 

an SVP. Butler, 173 A.3d at 1217-1218, citing Alleyne v. United States, 

570 U.S. 99 (2013). We further found 42 Pa.C.S.A. § 9799.24(e)(3) 

unconstitutional and directed trial courts to apply only the applicable 

tier-based registration period, as those periods apply based on the 
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conviction itself, and not due to any additional fact not found, under 

SORNA’s procedures, by the fact-finder. Butler, 173 A.3d at 1218.

Here, appellant’s reliance on Muniz and Butler is misplaced. First, 

appellant was not deemed an SVP in violation of Butler. Rather, the trial 

court complied with this court’s directive in Butler when it required 

appellant to register under the applicable tier-based registration period 

based upon appellant’s conviction itself and not based upon any additional 

fact not found by a fact-finder. Second, because SORNA was not 

retroactively applied to appellant, Muniz provides no relief. Third, neither 

Muniz nor Butler held that a SOAB assessment is unconstitutional. 

Appellant’s constitutional challenges, therefore, lack merit.

Appellant appears to challenge the discretionary aspect of his sentence 

by claiming that the trial court’s consideration of the SOAB assessment 

somehow constituted an abuse of discretion even though “[t]he author of 

the SVP report had the same information available to them as did the 

probation officer that did the pre-Sentence Investigation.” (Appellant’s brief 

at 12.)

Challenges to the discretionary aspects of sentencing 

do not entitle an appellant to review as of right. 

Commonwealth v. Sierra, [752 A.2d 910, 912 

(Pa.Super. 2000)]. An appellant challenging the 

discretionary aspects of his sentence must invoke 

this Court’s jurisdiction by satisfying a four-part test:

[W]e conduct a four-part analysis to 

determine: (1) whether appellant has 

filed a timely notice of appeal, see
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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.A. 

§ 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (citation 

omitted; brackets in original).

Here, appellant filed a timely notice of appeal, but did not properly 

preserve, in a post-sentence motion seeking reconsideration of sentence, his 

seeming challenge that the court abused its discretion by considering the 

SOAB assessment. Additionally, appellant failed to include in his brief the 

requisite Rule 2119(f) statement. Consequently, to the extent that appellant 

challenges a discretionary aspect of his sentence, appellant has failed to 

invoke this court’s jurisdiction.

3

 

3 We note that the Commonwealth did not object to appellant’s failure to 

include a Rule 2119(f) statement. Therefore, had appellant properly invoked 

this court’s jurisdiction by preserving his discretionary challenge in a 

post-sentence motion for reconsideration of sentence, appellant’s failure to 

include a Rule 2119(f) statement in his brief would not automatically result 

in waiver of his discretionary sentencing challenge. See Commonwealth v. 

Dodge, 77 A.3d 1263, 1271 (Pa.Super. 2013) (reiterating that this court 

may address a discretionary sentencing challenge where the Commonwealth 

does not object to defendant’s failure to include a Rule 2119(f) statement in 

the appellate brief). Had appellant properly invoked our jurisdiction, 

however, appellant would have failed to raise a substantial question for our 

review because he advances no argument that the trial court’s actions were 

either: (1) inconsistent with a specific provision of the Sentencing Code; or 
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In his final issue, appellant maintains that the courts, and not the state 

police, should “be the ones that monitor [SORNA] compliance” because 

“[a]ppellant does not see the reason the State Police need to have 

standing.” (Appellant’s brief at 20.) Appellant then relies upon 

Commonwealth v. Harmon,

4 which he indicates was decided by a 

Philadelphia trial court and which he claims “is similar” to his case. (Id. at 

21.)

Notwithstanding the fact that a trial court decision is not binding upon 

this court (see Dental Care Assocs., Inc. v. Keller Eng’rs, Inc., 954 A.2d 

597, 603 (Pa.Super. 2008)), appellant fails to demonstrate how his case is 

“similar” to Harmon. Consequently, appellant waives this claim on appeal. 

See Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) 

(reiterating that “where an appellate brief fails to provide any discussion of a 

claim with citation to relevant authority or fails to develop the issue in any 

other meaningful fashion capable of review, that claim is waived”); citing to 

Commonwealth v. Walter, 966 A.2d 560, 566 (Pa. 2009); 

Commonwealth v. Steele, 961 A.2d 786, 799 n.12 (Pa. 2008); 

Commonwealth v. Puksar, 951 A.2d 267, 293-294 (Pa. 2008). See also

 

(2) contrary to the fundamental norms which underlie the sentencing 

process. See Commonwealth v. Swope, 123 A.3d 333, 338 (Pa.Super. 

2015).

4 We note that we were unable to locate this decision based upon the 

citation that appellant provided.
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Pa.R.A.P. 2119(a) (requiring that each point treated in an argument must be 

“followed by such discussion and citation of authorities as are deemed 

pertinent”). Finally, we note that our supreme court has long held that it is 

not the court’s obligation to formulate an appellant’s arguments. See 

Commonwealth v. Wright, 961 A.2d 119, 135 (Pa. 2008); 

Commonwealth v. Thomas, 717 A.2d 468, 482-483 (Pa. 1998).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/30/19