J-A08010-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LEON FULTON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2649 EDA 2016

Appeal from the Judgment of Sentence April 8, 2016

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0010329-2014

 CP-51-CR-0010330-2014

BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER*, J.

MEMORANDUM BY PANELLA, J. FILED AUGUST 31, 2018

Following a hearing, Appellant, Leon Fulton, was found to meet the 

statutory requirements to be classified as a “sexually violent predator” 

pursuant to the assessment provision of then current version of the Sex 

Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S.A. § 9799.24. 

He now appeals that designation in light of the Pennsylvania Supreme Court’s 

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

denied, 138 S.Ct. 925 (2018). 

The main argument presented by Fulton is that the retroactive 

application of SORNA violates the ex post facto clauses of the federal and state 

constitutions because the offenses to which he pleaded guilty occurred prior 

to the effective date of SORNA. He also contends that the standard of proof of 

clear and convincing evidence relating to SVPs is no longer constitutionally 
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sufficient because the consequences of the designation under SORNA have 

been deemed punitive in nature, therefore requiring proof beyond a 

reasonable doubt.1 Fulton’s brief was filed before our published decision in 

Commonwealth v. v. Butler, 173 A.3d 1212, 1217 (Pa. Super. 2017).

On November 4, 2014, Fulton entered a negotiated guilty plea in two 

separate cases. In the first, docketed at CP-51-CR-0010329-2014, he pled 

guilty to two counts: Indecent Assault, 18 Pa.C.S.A. § 3126, graded as a felony 

of the third degree, and Corruption of Minors, 18 Pa.C.S.A. § 6301, graded as 

a misdemeanor of the first degree. In the second, docketed at CP-51-

0010330-2014, he pled guilty to Involuntary Deviate Sexual Intercourse, 18 

Pa.C.S.A. § 3123, a felony of the first degree, and Corruption of Minors, 18 

Pa.C.S.A. § 6301, again graded as a misdemeanor of the first degree. At the 

time of his guilty plea, the Commonwealth summarized the factual foundation 

to support the plea as follows:

As to . . . No. 10329-2014, the complaining witness in that 

case is a -- was an 11-year-old female, initials S.F. She stated 

that while inside of 400 North, I believe it’s Busti Street . . . , here 

in Philadelphia, apartment 1502, her uncle, the defendant here at 

the bar of the Court, touched her private parts on multiple 

occasions with her [sic] hands on the top of her clothes. She 

stated that the defendant would touch and rub her buttocks and 

chest with his hands. She stated that the defendant told her that 

if he – if she told anybody he would kill her and her brother.

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1 Fulton also contends that the evidence presented at the SVP hearing did not 

prove that he suffers from Pedophilic Disorder, the underlying basis for his 

designation as a sexually violent predator. In light of our decision that the 

order must be reversed, we do not reach that issue. 
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She also stated this subject would lock her and her brother 

in a closet after beating them with a belt. She recalled –

recollected that this incident happened sometime during the 

course of 2008.

As to . . . Docket No. 10330, the victim is a 15-year-old 

male, C.S., who I believe is the brother. He was interviewed and 

stated that while inside that same residence, his uncle, the 

defendant, sexually abused him on one occasion. The complainant 

stated that he was in the bathroom when the defendant pulled 

down his pants and tried to put his penis in the complainant’s 

buttocks. The complainant stated that he felt like he was being 

raped and that his buttocks hurt when the subject tried to put his 

penis in there. He indicates that this incident happened when he 

was approximately 8 to 9 years old or what would have been 

2009. 

Transcript, Guilty Plea, 11-4-2014, at 9-10. 

A bifurcated SVP hearing was held on November 9, 2015, and March 10, 

2016. At the first hearing, Dr. Barbara Ziv testified on behalf of the 

Commonwealth, and at the second hearing, Dr. Timothy Foley testified on 

behalf of Fulton. At the conclusion of the March 10 hearing, the trial court 

found that Fulton should be designated as a sexually violent predator. 

Transcript, Hearing Volume I, 3-10-2016 at 4-9.2

On April 8, 2016, Fulton received an aggregate sentence of six to twelve 

years of incarceration, to be followed by ten years of supervision. 

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2 “The Commonwealth has shown the defendant meets the criteria, mental 

abnormality or personal disorder, likely to engage in predatory sexual 

offenses.” Transcript, Hearing Volume I, 3-10-2016 at 9.
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Fulton filed a timely counseled post sentence motion. In the Motion, 

Fulton’s sole issue challenged his classification as a Sexually Violent Predator. 

The Motion was denied by the trial court on August 15, 2016. This appeal 

follows. 

Fulton raises five issues. In the first three, Fulton contends that his 

designation as a SVP should be vacated in light of Muniz, as well as the 

application of the federal and state constitutional prohibitions against ex post 

factor sanctions. In his fourth, he argues that the Commonwealth did not 

present sufficient evidence to satisfy the statutory definition of a sexually 

violent predator. In his last issue, he requested permission to raise other 

matters that are addressed in Muniz in the event this case is remanded for a 

new SVP hearing. Fulton does not challenge his conviction or his sentence. 

The Commonwealth, in its brief, does not oppose the reversal of the trial 

court’s remand for a new SVP hearing. The Commonwealth states that it “does 

not oppose the reversal of the order below to the extent that it retroactively 

applies the registration requirements of SORNA. Because defendant does not 

challenge the validity of his guilty plea or the imposition of the negotiated 

sentence, the judgments of sentence should be affirmed in all other aspects.” 

Appellee’s Brief at 6-7 (footnote omitted). 

In Muniz, the Pennsylvania Supreme Court found the registration 

conditions of the former version of SORNA to be punitive. The Court held that 

retroactive application of SORNA’s then registration requirements constituted 
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a violation of both the United States and Pennsylvania’s constitutional 

provisions against ex post facto laws. Consequently, the Court deemed such 

retroactive applications unconstitutional and therefore invalid. 

We subsequently applied Muniz in Commonwealth v. 

v. Butler, 173 A.3d 1212, 1217 (Pa. Super. 2017), to hold that trial courts 

cannot constitutionally apply SORNA’s SVP procedures. There, we explained 

that doing so would unconstitutionally deprive a criminal defendant of the right 

to have a jury determine whether the Commonwealth had proven all elements 

of the crime charged beyond a reasonable doubt:

In sum, we are constrained to hold that section 9799.24(e)(3) of 

SORNA 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. Moreover, we are constrained 

to hold trial courts cannot designate convicted defendants SVPs 

(nor may they hold SVP hearings) until our General Assembly 

enacts a constitutional designation mechanism. Instead, trial 

courts must notify a defendant that he or she is required to 

register for 15 years if he or she is convicted of a Tier I sexual 

offense, 25 years if he or she is convicted of a Tier II sexual 

offense, or life if he or she is convicted of a Tier III sexual offense. 

We, therefore, vacate the trial court's order of July 25, 2016 which 

found Appellant to be an SVP and, we remand this case to the trial 

court for the sole purpose of issuing the appropriate notice under 

42 Pa.C.S.A. § 9799.23 as to Appellant's registration obligation 

for a period of 15 years. As we reverse the trial court's SVP order, 

we need not address the issues he raises on appeal, which contest 

his SVP designation on other grounds.

Id., at 1218 (emphasis added). 

Applying Butler in a later decision, we said: 

Butler determined that, as a result of Muniz, the SVP procedure 

is subject to the constitutional requirement that the facts 
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constituting that punishment must be found by a fact-finder 

beyond a reasonable doubt. Thus, 42 Pa.C.S. § 9799.24(e)(3), 

which requires the trial court to find the relevant facts by clear 

and convincing evidence, was deemed unconstitutional. 

Commonwealth v. Tighe, 184 A.3d 560, 583 (Pa. Super. 2018).

The Pennsylvania Legislature has endeavored to resolve the issues 

raised in Muniz by passing a law to replace the invalidated portions of SORNA. 

See 2018 Pa. Legis. Serv. Act 2018-29 (H.B. 1952) (approved June 12, 2018) 

(“Act 29”), amending Title 42 (Judicial Procedure) of the Pennsylvania 

Consolidated Statutes. Though Act 29 was enacted during the pendency of 

this appeal, it became effective immediately. However, it does not amend the 

SVP provisions in 42 Pa.C.S.A. § 9799.24. See 42 PA.C.S.A. § 9799.52 and

9799.55. 

In light of Muniz and Butler, Appellant's SVP status constitutes an 

illegal sentence. Therefore, we vacate that portion of Appellant's sentence 

finding him to be an SVP and remand to the trial court to issue a revised notice 

to Appellant pursuant to 42 Pa.C.S.A. § 9799.23 (governing reporting 

requirements of sex offenders). Accordingly, we vacate the trial court’s 

imposition of SVP status, but affirm the judgment of sentence in all other 

respects. 
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Since Fulton was convicted of a Tier III offense, he is still required to 

register for life. See 42 Pa.C.S. § 9799.14(d) (classifying Involuntary Deviate 

Sexual Intercourse as a Tier III offense).3

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

remanded for proceedings consistent with this memorandum. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/31/18

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3

Involuntary Deviate Sexual Intercourse also required lifetime registration 

under Megan’s Law, 42 Pa.C.S.A. § 9795.1(b)(2) (repealed).
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