IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

LEROY SPANN,

Appellant

v.

PENNSYLVANIA BOARD OF 

PROBATION AND PAROLE AND 

PENNSYLVANIA STATE POLICE,

Appellees

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No. 71 MAP 2016

Appeal from the Order of the 

Commonwealth Court at No. 728 MD 

2012 dated June 9, 2016.

CONCURRING STATEMENT

JUSTICE MUNDY FILED: August 16, 2017

I agree that in light of this Court’s recent decision in Commonwealth v. Muniz, 

___ A.3d ___, 2017 WL 3173066 (Pa. July 19, 2017), the Commonwealth Court erred in 

rejecting Appellant’s argument that SORNA is an ex post facto law.1 However, if I were 

writing on a blank slate, I would conclude that SORNA does not violate the Ex Post 

Facto Clauses of the Federal and Pennsylvania Constitutions.

I have previously expressed my views in this area in Commonwealth v. Perez, 97 

A.3d 747 (Pa. Super. 2014). Therein, the Superior Court balanced the factors 

articulated under Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). The panel

concluded that SORNA’s requirement that an offender appear physically in person to 

regularly update his or her information was “an affirmative restraint,” weighing in favor of 

 

1

I did not participate in Muniz, which was argued with Commonwealth v. Gilbert, 48 

MAP 2016, a case in which I participated on the Superior Court.
2

concluding SORNA was punitive, and therefore an ex post facto law. Perez, 97 A.3d at 

754. However, the court also concluded that the other six factors did not weigh in favor 

of concluding SORNA was punitive. See id. 754-58. Balancing these factors, Perez

concluded that SORNA was not punitive, and therefore not an ex post facto law under 

the Federal Constitution.2 Id. at 758-59.

I continue to believe that Perez was correctly decided and struck the proper 

balance under controlling cases from the Supreme Court of the United States. I

therefore disagree with Muniz’s conclusion that SORNA violates the Ex Post Facto

Clause of the Federal Constitution. Even assuming that Muniz’s federal constitutional 

analysis was correct, its analysis should have properly ended there, since any claim 

under the Pennsylvania Constitution is moot. See generally Pap’s A.M. v. City of Erie, 

719 A.2d 273, 281 n.12 (Pa. 1998) (concluding that since a local ordinance violated the 

First Amendment of the Federal Constitution, there was no need to consider whether 

the ordinance also violated the Pennsylvania Constitution), rev’d, 529 U.S. 277 (2000). 

Since the Court decided to reach that argument, I agree with Justice Wecht that the Ex 

Post Facto Clause of the Pennsylvania Constitution does not provide higher protections 

than its federal counterpart. See Muniz, 2017 WL 3173066, at *26-33 (Wecht, J., 

concurring).

Although I disagree with Muniz’s conclusions, they are now the law of this 

Commonwealth. As such, they must be applied in a meaningful way. No sensible 

reading of Muniz would permit the Commonwealth Court’s contrary judgment to stand. I 

 

2

The panel did not address Perez’s claim under the Pennsylvania Constitution, due to 

his failure to conduct an analysis pursuant to Commonwealth v. Edmunds, 586 A.2d 

887 (Pa. 1991) in his brief. See Perez, 97 A.3d at 759-60.
3

therefore join the Court’s order in this case, because it correctly applies Muniz and 

reverses the Commonwealth Court’s order in this regard.