J-S42038-18

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

JERRY NEGRON,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 No. 66 MDA 2018

Appeal from the Judgment of Sentence October 26, 2017

in the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0005100-2016

 

BEFORE: BOWES, MCLAUGHLIN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 02, 2018

Jerry Negron (Appellant) appeals from the October 26, 2017 judgment 

of sentence entered after a jury found him guilty of two counts of 

involuntary deviate sexual intercourse (IDSI), three counts of indecent 

exposure, six counts of corruption of minors, and one count each of sexual 

assault, aggravated indecent assault, and indecent assault. Upon review, we

affirm in part, vacate in part, and remand for proceedings consistent with 

this memorandum.

We begin with a brief procedural history. Appellant was charged with 

three counts of IDSI, two counts of aggravated indecent assault, two counts 

of indecent assault, seven counts of corruption of minors, four counts of 

indecent exposure, and one count of sexual assault for numerous incidents
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involving three of Appellant’s nieces, K.T., L.T., and Y.T., which occurred 

between January 1, 2005, and December 31, 2015.

Several pre-trial motions were filed, including two motions in limine. 

The Commonwealth filed a motion in limine on May 25, 2017, seeking, inter 

alia, to prohibit Appellant from eliciting testimony from any witness 

regarding sexual abuse allegations made by the victims against other 

individuals. Appellant responded with his own motion in limine on June 1, 

2017, seeking access to Berks County Children and Youth Services Agency 

(CYS) records containing reports of the victims’ prior, unfounded claims of 

sexual abuse against other individuals, including the names of the accused. 

On June 2, 2017, the trial court held a hearing on the two motions in

limine.

1

 On June 5, 2017, the trial court issued an order that, inter alia, 

prohibited Appellant from eliciting testimony from any witness about 

allegations of sexual abuse made by the victims against other individuals, 

and denied Appellant’s request for the identities2 of the individuals alleged to 

have also been accused of sexual abuse by the victims. 

Appellant proceeded to a jury trial, after which he was found guilty as 

detailed above. On October 26, 2017, Appellant was found to be a sexually 

 

1 Appellant failed to include a copy of this transcript in the certified record.

2

In his brief on appeal, Appellant states that the names of the accused had 

been disclosed via other discovery materials. Appellant states that he 

sought the reports because he wanted information regarding the outcome of 

any CYS investigations into the allegations. See Appellant’s Brief at 28.
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violent predator (SVP) pursuant to 42 Pa.C.S. § 9799.24, and was sentenced 

to an aggregate term of 28 to 71 years of incarceration, followed by 15 

years of special probation. Due to Appellant’s convictions and SVP 

designation, he was subject to the provisions of Pennsylvania’s Sex Offender 

Registration and Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10-9799.42,

and is required to register for his lifetime as a sex offender.

On November 6, 2017, Appellant filed a post-sentence motion, along 

with a petition to file an amended post-sentence motion upon receipt of the

jury trial and sentencing hearing transcripts. That same day, the trial court 

granted the petition to amend the post-sentence motion within 30 days of 

the filing of the requested transcripts. Nonetheless, the trial court denied 

Appellant’s post-sentence motion by order entered on November 15, 2017. 

Subsequently, following receipt of the transcripts, Appellant filed a second

post-sentence motion on December 15, 2017,3 which the trial court denied 

on December 20, 2017.

On January 8, 2018, Appellant filed the instant notice of appeal.

4

 On 

appeal, Appellant presents the following issues for our review.

A. Whether the trial court abused its discretion when it denied 

Appellant’s motion in limine prohibiting Appellant from 

entering evidence regarding witnesses’ allegations of abuse 

against another individual when these allegations were 

 

3 This was purportedly Appellant’s amended post-sentence motion.

4 Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
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reported simultaneously with the allegations made against 

Appellant[.]

B. Whether the trial court erred as a matter of law, abused its 

discretion and violated general sentencing principles when the 

trial court imposed an aggregate sentence of 28 years to 71 

years of incarceration at a state facility, followed by 15 years 

of special probation, when the Appellant had no criminal 

history and a prior record score of zero[.]

C. Whether the trial court erred as a matter of law by 

designating Appellant a[n SVP] and illegally enhancing his 

sentence[.]

Appellant’s Brief at 12 (unnecessary capitalization, suggested answers, and 

footnote omitted).

Before we reach the merits of Appellant’s claims, we must determine 

whether this appeal is properly before us. See Commonwealth v. Harris, 

114 A.3d 1, 6 (Pa. Super. 2015) (holding that “we may sua sponte consider 

whether we have jurisdiction to consider the merits of the claims 

presented”). 

Here, Appellant timely filed a post-sentence motion on November 6, 

2017.

5

 On the same date, Appellant requested permission to file a 

 

5 A defendant must file a post-sentence motion within ten days of the 

judgment of sentence. Pa.R.Crim.P. 720(A)(1). Ten days after October 16, 

2017, was Sunday, November 5, 2017. Thus, Appellant timely filed his postsentence motion on Monday, November 6, 2017. See 1 Pa.C.S. § 1908 

(“Whenever the last day of any such period shall fall on Saturday or Sunday, 

... such day shall be omitted from the computation.”). 
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supplemental post-sentence motion, as permitted by Rule 720(B)(1)(b),6

and the trial court exercised its discretion in granting Appellant the right to

do so. Nonetheless, instead of waiting for Appellant to file a supplemental 

post-sentence motion, and then deciding the consolidated7 post-sentence 

motions within the time-frame permitted by Rule 720(B)(3),8the trial court 

 

6 “The defendant may file a supplemental post-sentence motion in the 

judge’s discretion as long as the decision on the supplemental motion can be 

made in compliance with the time limits of paragraph (B)(3).” Pa.R.Crim. P. 

720(B)(1)(b).

7 “The defendant in a court case shall have the right to make a postsentence motion. All requests for relief from the trial court shall be stated 

with specificity and particularity, and shall be consolidated in the postsentence motion[.]” Pa.R.Crim.P. 720(B)(1)(a).

8 Rule 720 provides in pertinent part:

(3) Time Limits for Decision on Motion. The judge shall not 

vacate sentence pending decision on the post-sentence motion, 

but shall decide the motion as provided in this paragraph.

(a) Except as provided in paragraph (B)(3)(b), the judge 

shall decide the post-sentence motion, including any 

supplemental motion, within 120 days of the filing of the 

motion. If the judge fails to decide the motion within 120 

days, or to grant an extension as provided in paragraph 

(B)(3)(b), the motion shall be deemed denied by operation 

of law.

(b) Upon motion of the defendant within the 120-day 

disposition period, for good cause shown, the judge may 

grant one 30-day extension for decision on the motion. If 

the judge fails to decide the motion within the 30-day 

extension period, the motion shall be deemed denied by 

operation of law.

(Footnote Continued Next Page)
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entered an order denying Appellant’s timely-filed post-sentence motion on 

November 15, 2017. 

Because the trial court entered an order deciding Appellant’s postsentence motion, the clock began to run for filing a notice of appeal pursuant 

to Rule 720(A)(2)(a)9 and the November 6, 2017 order allowing Appellant to

supplement the post-sentence was rendered moot. Therefore, Appellant had 

30 days from November 15, 2017 to file a timely appeal, and the January 8, 

2018 notice of appeal was untimely filed.

However, this Court may address an otherwise untimely notice of 

appeal if fraud or a breakdown in the trial court’s processes caused the 

untimely appeal. See Commonwealth v. Khalil, 806 A.2d 415, 420 (Pa. 

Super. 2002). This Court has found that a breakdown occurs “when the trial 

court or the clerk of courts depart[s] from the obligations specified in [] 

Rules 704 and 720 of the Pennsylvania Rules of Criminal Procedure.” 

Commonwealth v. Patterson, 940 A.2d 493, 499 (Pa. Super. 2007). 

Among these obligations is the requirement that an order denying a postsentence motion notify the defendant of, inter alia, “the right to appeal and 

(Footnote Continued) _______________________

Pa.R.Crim.P. 720(B)(3).

9 “If the defendant files a timely post-sentence motion, the notice of appeal 

shall be filed... within 30 days of the entry of the order deciding the 

motion[.]” Pa.R.Crim.P. 720(A)(2)(a).
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the time limits within which the appeal must be filed[.]” Pa.R.Crim.P. 

720(B)(4)(a). 

Here, the trial court failed to comply with Rule 720. In the November 

15, 2017 order denying Appellant’s post-sentence motion, the trial court did 

not notify Appellant of his right to file an appeal within 30 days of the entry 

of that order. Had the trial court done so, Appellant could have timely filed a 

notice of appeal from that order. Moreover, we note the confusion that the 

trial court created unnecessarily by granting the petition to supplement 

Appellant’s post-sentence motion, denying his post-sentence motion without 

advising him of his right to appeal, and then considering and denying 

Appellant’s supplemental post-sentence motion that was filed after the trial 

court already ruled on Appellant’s post-sentence motion.10

Accordingly, we find that the trial court’s failure to comply with Rule 

720 constitutes a breakdown in the court processes that excuses the 

untimely filing of Appellant’s notice of appeal. See Patterson, 940 A.2d at 

499. Furthermore, given the confusion that the trial court created, as stated 

supra, we will consider Appellant’s post-sentence motion and amended postsentence motion together as if consolidated, which appears to have been the 

 

10 We also note that if the trial court believed it was not finally deciding 

Appellant’s post-sentence motion until it considered Appellant’s 

supplemental post-sentence motion, the trial court still failed to comply with 

Rule 720 by filing an identical order on December 20, 2017, with no mention 

of Appellant’s right to file an appeal.
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intent of Appellant and the trial court. As such, we may now turn to the 

merits of Appellant’s appeal. 

Motion in Limine

Appellant first claims that the trial court erred in denying his motion in

limine. We consider this claim mindful of the following.

Generally, a trial court’s decision to grant or deny a motion in 

limine is subject to an evidentiary abuse of discretion standard 

of review. In this context,

The term “discretion” imports the exercise of 

judgment, wisdom and skill so as to reach a 

dispassionate conclusion, within the framework of 

the law, and is not exercised for the purpose of 

giving effect to the will of the judge. Discretion must 

be exercised on the foundation of reason, as 

opposed to prejudice, personal motivations, caprice 

or arbitrary actions. Discretion is abused when the 

course pursued represents not merely an error of 

judgment, but where the judgment is manifestly 

unreasonable or where the law is not applied or 

where the record shows that the action is a result of 

partiality, prejudice, bias or ill will.

Admission of evidence is within the sound discretion of 

the trial court and will be reversed only upon a showing that the 

trial court clearly abused its discretion. Admissibility depends on 

relevance and probative value. Evidence is relevant if it logically 

tends to establish a material fact in the case, tends to make a 

fact at issue more or less probable or supports a reasonable 

inference or presumption regarding a material fact.

Commonwealth v. Reese, 31 A.3d 708, 715–16 (Pa. Super. 2011)

(citations and quotation marks omitted).

In his pre-trial motion in limine, Appellant sought to “admit evidence 

related to information of individuals whom the complaining witness(es)
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accused previously of sexual abuse and whose abuse was never 

substantiated by any Commonwealth agency.” Motion in Limine, 6/1/2017, 

at ¶ 8. Appellant argued that such evidence was material to the credibility 

of the victims, and pursuant to Pa.R.E. 404(b)(2) was admissible as an 

exception to the general rule against prior bad acts testimony, and prove the 

victims’ plans to accuse falsely individuals of sexual abuse for some 

unknown ulterior motives.

11 Id. at ¶¶ 14-21. 

In its Pa.R.A.P. 1925(a) opinion, the trial court explained its reasoning 

for denying Appellant’s motion.

The Child Protective Services Law requires the 

confidentiality of child abuse reports and only permits the 

release of these reports to certain parties. Appellant was neither 

the subject of the CYS information he sought to obtain nor an 

enumerated person or agency listed in 23 Pa.C.S.[] § 6340 and, 

as a result, requested relief from th[e trial] court to obtain 

confidential reports.

In the case at bar, th[e trial] court recognized that an 

unfounded report of child abuse does not mean that the report 

was untrue. Unlike the factual situation in [Commonwealth v.]

Schley, [136 A.3d 511 (Pa. Super. 2016),] the sexual assault 

allegations made by the victims in this case against other 

individuals were not confirmed as false. Child abuse reports may 

be deemed unfounded due to a number of factors including the 

victim’s failure to pursue the claim or the unavailability of 

witnesses. A county agency’s failure to act may also result in a 

determination that a report of child abuse is unfounded. 

 

11 Appellant also argued in his motion in limine for its admissibility under the 

doctrine of chances as outlined in Chief Justice Saylor’s concurring opinion in 

Commonwealth v. Hicks, 156 A.3d 1114 (Pa. 2017). Motion in Limine, 

6/1/2017, at ¶ 22. However, Appellant has abandoned this argument on 

appeal, and we will not address it.
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Appellant attempted to engage in a fishing expedition and hoped 

to discover information that would be detrimental to the 

prosecution’s case. However, th[e trial] court declined to 

indulge Appellant’s hunches and speculation by denying 

Appellant’s motion.

Pennsylvania courts have held that allegations of prior 

sexual abuse by a third party against a victim are irrelevant, 

collateral matters and have no relationship to the matter on trial. 

Appellant attempted to obtain evidence of collateral issues and 

would have been prohibited from contradicting the victims using 

this irrelevant information at trial. If Appellant had obtained and 

used this information, the jury would have heard testimony 

regarding alleged sexual assault allegations against other 

individuals resulting in confusion for the jury. The jury would 

have been required to determine whether those independent 

allegations of sexual abuse had occurred and to assess the 

credibility of the victims in relation to those allegations. The 

unfounded sexual assault allegations were not relevant to 

whether Appellant committed the charged offenses against these 

victims. Furthermore, the subjects of those unfounded reports 

have a constitutionally protected right to their reputations. 

There was no basis to violate the rights of these individuals by 

disclosing their names to Appellant. For all of the above 

reasons, th[e trial] court denied Appellant’s motion and 

determined that evidence of prior, unfounded reports of sexual 

abuse made by the victims in this case against other unknown 

individuals, unrelated to the case at bar, and the names of those 

accused individuals were immaterial and irrelevant to Appellant’s 

defense.

Trial Court Opinion, 4/4/2018, at 12-13 (unnecessary capitalization and 

some citations omitted).

In his brief, Appellant avers that the trial court placed “unfair priority” 

on the privacy of the individuals in the CYS reports, and erred in dismissing 

the motion without first conducting an in camera review. Appellant’s Brief at 

29. The Commonwealth contends that because the reports had no potential 
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evidentiary value in Appellant’s case, there was no need for an in camera 

review. Commonwealth’s Brief at 7. 

We find Commonwealth v. Johnson, 638 A.2d 940 (Pa. 2004), to be 

instructive. As in Appellant’s case, the trial court prohibited the admission of 

a child victim’s prior allegation of sexual abuse against another individual in 

Johnson’s trial for inter alia, rape. In doing so, the trial court in Johnson

relied on the Rape Shield Law, 18 Pa.C.S. § 3104. Our Supreme Court held 

that the Rape Shield Law did not apply because it was not intended to 

prohibit testimony that did not concern the past sexual conduct of the 

victim. Johnson, 638 A.2d at 942 (“To be a victim is not ‘conduct’ of the 

person victimized. It would be illogical to conclude that the Rape Shield Law 

intended to prohibit this type of testimony.”). Similarly, the Rape Shield Law 

does not apply here to prohibit the admission of this testimony. However, 

that does not end our inquiry. 

Even though the Rape Shield Law did not bar [the] testimony, 

that testimony does not automatically become admissible. The 

question then becomes whether the testimony is relevant and 

material under the traditional rules of evidence. As this Court 

stated in Commonwealth v. Haight, [] 525 A.2d 1199, 1200 

([Pa.] 1987):

Evidence is relevant when ‘the inference sought to 

be raised by the evidence bears upon a matter in 

issue in the case and, second, whether the evidence 

renders the desired inference more probable than it 

would be without the evidence.’

Thus, the question becomes, whether the testimony ... is 

relevant on any material fact in issue?
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Clearly, whether or not [another individual sexually assaulted 

the victim] is immaterial to whether or not, on March 22, 1987—

three or four years later—[Johnson] dragged [the victim] behind 

the bushes in the park and raped her. Appellant argues that the 

testimony is material as it concerns the credibility of both [the 

victim] and [the previously accused individual]. However, a 

witness may not be contradicted upon a collateral matter. A 

collateral matter is one which has no relationship to the matter 

on trial. The proffered testimony does not bear upon a matter in 

issue in this case.

Johnson, 638 A.2d at 942–43 (some citations omitted). 

Similarly, the proffered evidence here, as the trial court concluded, is 

irrelevant to whether or not Appellant sexually assaulted the victims. As 

such, the victims’ prior allegations of sexual abuse by individuals not related 

to the instant case is collateral, and not a matter that Appellant could use to 

impeach the victims’ credibility. Accordingly, we conclude that the trial court 

did not abuse its discretion in denying Appellant’s motion in limine. 

Discretionary Aspects of Sentencing

We turn now to Appellant’s claim regarding the discretionary aspects 

of his sentence, mindful of the following.

Challenges to the discretionary aspects of sentencing do not 

entitle an appellant to review as of right. An appellant 

challenging the discretionary aspects of his sentence must 

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

We conduct a four-part analysis to determine: (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 
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(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. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some 

citations omitted). 

Appellant has satisfied the first three requirements: he timely filed a 

notice of appeal; he sought reconsideration in a post-sentence motion and 

amended post-sentence motion; and his brief includes a Pa.R.A.P. 2119(f)

statement. Therefore, we now consider whether Appellant has raised a 

substantial question for our review.

“A substantial question exists only when the appellant advances a 

colorable argument that the sentencing judge’s actions were either: (1) 

inconsistent with a specific provision of the sentencing code; or (2) contrary 

to the fundamental norms which underlie the sentencing process.” Griffin, 

65 A.3d at 935 (citation and quotation marks omitted). Appellant contends 

in his 2119(f) statement that

[t]he [trial] court failed to 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[,] 

thereby creating a sentence that offends the fundamental norms 

underlying sentencing. The court’s failure to give these 

factors their proper weight in deciding Appellant’s sentence 

raise[s] a substantial question as to the appropriateness of the 

sentence under the [s]entencing [c]ode. 
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Appellant’s Brief at 22 (emphasis added).12

Contrary to Appellant’s assertion, such a claim does not present a 

substantial question for our review. Commonwealth v. Disalvo, 70 A.3d 

900, 903 (Pa. Super. 2013) (citation and quotation marks omitted) (“[A] 

claim of inadequate consideration of mitigating factors does not raise a 

substantial question for our review.”). Accordingly, Appellant has not 

satisfied the four-part test necessary to invoke our jurisdiction. Thus, he is

not entitled to review of his discretionary-aspects-of-sentencing claim.

Illegal Sentence

Finally, Appellant claims that “[t]he trial court imposed an illegal 

sentence by designating Appellant an SVP, which requires him to register 

with the Pennsylvania State Police for the remainder of his life.” Appellant’s 

Brief at 34. 

 

12 Appellant alleges in the argument section of his brief that the trial court 

inappropriately considered the report from the Sex Offender Assessment 

Board (SOAB) in fashioning his sentence. See Appellant’s Brief at 32. This 

raises a substantial question. See Commonwealth v. Allen, 24 A.3d 1058, 

1064-65 (Pa. Super. 2011) (citations omitted) (“This Court has recognized 

that a claim that a sentence is excessive because the trial court relied on 

an impermissible factor raises a substantial question.”). However, this Court 

“cannot look beyond the statement of questions presented and the prefatory 

2119(f) statement to determine whether a substantial question exists.” 

Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012)

(citation omitted). Accordingly, we cannot consider this argument in 

determining whether Appellant has raised a substantial question because he

did not include it in the statement of questions presented or in his 2119(f) 

statement.
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Here, the trial court designated Appellant an SVP on October 26, 2017. 

Five days later, this Court decided Commonwealth v. Butler, 173 A.3d 

1212 (Pa. Super. 2017), appeal granted, 47 WAL 2018 (Pa. filed July 31, 

2018). 

[S]ince our Supreme Court has held that SORNA registration 

requirements are punitive or a criminal penalty to which 

individuals are exposed, then under Apprendi [v. New Jersey, 

530 U.S. 466 (2013)] and Alleyne [v. United States, 570 U.S. 

99 (2013)], a factual finding, such as whether a defendant has a 

“mental abnormality or personality disorder that makes [him or 

her] likely to engage in predatory sexually violent offenses [,]” 

42 Pa.C.S.[] § 9799.12, that increases the length of registration 

must be found beyond a reasonable doubt by the chosen factfinder. S[ubs]ection 9799.24(e)(3) identifies the trial court as 

the finder of fact in all instances and specifies clear and 

convincing evidence as the burden of proof required to designate 

a convicted defendant as an SVP. Such a statutory scheme in the 

criminal context cannot withstand constitutional scrutiny. 

Accordingly, we are constrained to hold that [sub]section 

9799.24(e)(3) is unconstitutional and [a]ppellant’s judgment of 

sentence, to the extent it required him to register as an SVP for 

life, was illegal.

Id. at 1217–18.

Pursuant to Butler, we conclude that the October 26, 2017 order 

deeming Appellant an SVP is unconstitutional. Accordingly, we vacate that 

portion of Appellant’s sentence. 

We now address Appellant’s sex offender registration requirements. 

Appellant concedes that, based on his convictions, “he is required to 

register[.]“ Appellant’s Brief at 34. Relevant to his sex offender 

registration, Appellant was convicted of IDSI, sexual assault, and aggravated 
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indecent assault, which are Tier III offenses requiring lifetime registration 

under SORNA. 42 Pa.C.S. §§ 9799.14(d), 9799.15(a)(3). However, 

Appellant argues that “designating Appellant as an SVP and imposing the 

Tier III registration requirements is in violation of the [Commonwealth v.] 

Muniz[, 164 A.3d 1189 (Pa. 2017)] precedent.” Appellant’s Brief at 35. 

Appellant raises this Muniz claim for the first time in his appellate 

brief. However, “[w]hen a state enforces a constitutionally-barred penalty, 

the resulting [] sentence is unlawful.” Commonwealth v. RiveraFigueroa, 174 A.3d 674, 678 (Pa. Super. 2017) (citation omitted). Thus, a 

Muniz claim challenges the legality of Appellant’s sentence, which cannot be 

waived on direct appeal or in a timely-filed PCRA petition. See

Commonwealth v. Golson, ___ A.3d ___, 2018 WL 2473514 at *5 (Pa. 

Super. filed June 4, 2018) (“Generally, an appellant cannot raise 

new legal theories for the first time on appeal. Notwithstanding, because 

[a]ppellant’s claim presents a challenge to the legality of his sentence, it is 

not waived, even though [he] raised it for the first time in his appellate 

brief. Legality–of–sentence claims are not subject to traditional waiver 

doctrine.”) (citations omitted). Thus, we may review it.

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:
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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.

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, 174 A.3d 1094, 1095 (Pa. 
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Super. 2017); see also Commonwealth v. Hart, 174 A.3d 660, 667 n.9 

(Pa. Super. 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”).

SORNA became effective on December 20, 2012, replacing Megan’s 

Law III. Appellant committed the instant offenses between January 1, 2005 

and December 31, 2015. Thus, at the time he committed these offenses, he 

was subject in part to Megan’s Law III,13 and in part to SORNA. Under both 

registration schemes, IDSI, sexual assault, and aggravated indecent assault 

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

(expired) with 42 Pa.C.S. §§ 9799.14(d), 9799.15(a)(3). Although it did 

not increase the period of registration, 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 

 

13 Megan’s Law III was invalidated by our Supreme Court’s decision 

in Commonwealth v. Neiman, 624 Pa. 53, 84 A.3d 603 (Pa. 2013). 
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constitutional ex post facto prohibitions. See Muniz, 164 A.3d at 1193, 

1216. 

Because Appellant committed some of the crimes at a time when 

registration requirements were less onerous, and thus the punishment was 

lesser, SORNA cannot be applied retroactively to Appellant for those counts 

without violating the ex post facto clause of the Pennsylvania constitution. 

See Muniz, 164 A.3d at 1192-93. However, this does not mean that 

Appellant does not have to register as a sex offender. Accordingly, we 

vacate Appellant’s judgment of sentence to the extent it requires Appellant 

to register as a sex offender pursuant to SORNA, and remand for the trial 

court to provide Appellant with the appropriate notice of his tier-based 

registration obligations.

Portion of sentencing order deeming Appellant an SVP vacated. 

Portion of sentencing order requiring Appellant to comply with SORNA

vacated. Judgment of sentence affirmed in all other respects. Case 

remanded for proceedings consistent with this memorandum. Jurisdiction 

relinquished. 

Judge Bowes joins this memorandum.

Judge McLaughlin concurs in the result.
J-S42038-18

- 20 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/02/2018