J-S82015-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SCOTT DAVID DOW

Appellant No. 448 MDA 2016

Appeal from the Judgment of Sentence February 16, 2016

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0001440-2015

BEFORE: OTT, J., DUBOW, J., and PLATT, J.*

JUDGMENT ORDER BY OTT, J.: FILED NOVEMBER 22, 2016

Scott David Dow appeals from the judgment of sentence entered on 

February 16, 2016, in the Lancaster County Court of Common Pleas, 

following his guilty plea to four counts of sexual abuse of children 

(possession of child pornography) and one count of criminal use of a 

communication facility.1 The trial court imposed an aggregate sentence of 

two to five years’ imprisonment, followed by seven years’ probation. The 

court also determined Dow was subject to a lifetime registration requirement 

under the Sexual Offenders Registration and Notification Act (“SORNA”),2as 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 See 18 Pa.C.S. §§ 6312(d) and 7512(a), respectively. 

2 42 Pa.C.S. §§ 9799.10-9799.41.
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a Tier III offender because he had “[t]wo or more convictions of offenses 

listed as Tier I or Tier II sexual offenses.” 42 Pa.C.S. § 9799.14(d)(16).3 

On appeal, Dow argues the Pennsylvania Supreme Court’s recent decisions 

in Commonwealth v. Lutz-Morrison, 143 A.3d 891 (Pa. August 15, 2016), 

and A.S. v. Pennsylvania State Police, 143 A.3d 896 (Pa. August 15, 

2016), establish the trial court erred in classifying him as a Tier III offender 

and imposing a lifetime registration requirement. We agree.

In Lutz-Morrison, the Supreme Court clarified that Section 

9799.14(d)(16) “requires an act, a conviction, and a subsequent act to 

trigger lifetime registration for multiple offenses otherwise subject to a 

fifteen- or twenty-five-year period of registration.” Lutz-Morrison, supra, 

143 A.3d at 895 (emphasis supplied). Accord A.S., supra, 143 A.3d at 908 

(applying registration requirements of Megan’s Law II). Here, the trial court 

imposed the lifetime registration requirement based solely on the multiple 

Tier I offenses, included in the same information, to which Dow pled guilty. 

Under Lutz-Morrison, Dow’s guilty plea to multiple counts of possession of 

child pornography contained in a single criminal complaint, did not subject 

____________________________________________

3

Possession of child pornography is a Tier I offense under SORNA, subject to 

a 15-year registration requirement. See 42 Pa.C.S. §§ 9799.14(b)(9), 

9799.15(a)(1). Because Dow pled guilty to four counts of the offense, the 

court applied Section 9799.14(d)(16). 

We note that Dow was not deemed to have met the qualifications for 

classification as a sexually violent predator. See N.T., 2/6/2016, at 2; 42 

Pa.C.S. § 9799.24.
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him to a Tier III lifetime registration requirement because there was no 

“subsequent act” following his conviction. Lutz-Morrison, supra, 143 A.3d 

at 895. 

Therefore, we vacate Dow’s judgment of sentence in part, as to his 

classification as a Tier III offender, and remand to the trial court for the 

imposition of a 15-year registration requirement under Section 

9799.15(a)(1).

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

remanded for proceedings consistent with this judgment order. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/22/2016