J

- S12011

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ILDELFONSO CRUZ

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 207 EDA 2021

Appeal from the Order Entered January 4, 2021

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP

- 51

- CR

- 0008946

- 2011

COMMONWEALTH OF PENNSYLVANIA

v.

ILDELFONSO CRUZ

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 208 EDA 2021

Appeal from the Order Entered January 4, 2021

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP

- 51

- CR

- 0008945

- 2011

BEFORE: BENDER, P.J.E., BOWES, J., and DUBOW, J.

MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 24, 2022

Appellant, Ildelfonso Cruz, appeals from the January 4, 2021 order

denying his time ly

- filed petition under the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541

- 9546. After careful review, we vacate the PCRA court’s

order, vacate Appellant’s sentence of registration requirements under

Pennsylvania ’ s Sex Offender Registration and Notification Act ( SORNA ), 42

Pa.C.S. §§ 9799.10

– 9799.41 , and remand with instructions.J

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- 22

- 2

-

The PCRA court summarized the pertinent facts and procedural history

of Appellant’s case, as follows:

On April 21, 2011, [E.P.] went to her home located

... in

Philadelphia to pack clothes to bring to her mother’s house. [E.P.]

asked Luis Ramon and his younger brother, Ricardo Ramon, to

accompany her because she was having a problem with her ex

boyfriend, [] Appellant.

[E.P.]

, Luis, and Ricardo arrived at [E.P.’s] home at approximately

11:00 p.m. that night. While [E.P.] was packing her belongings,

... []Appellant[] arrived. Appellant did not have a key to [E.P.’s]

house nor did he have permission to be there. At some point

thereafter, Appellant began attacking Luis [. H] e grabbed Luis

from behind and stabbed him repeatedly [.] Luis sustained five

stab wounds to the left back and two stab wounds to the left

shoulder region. Luis eventually managed to escape to a nearby

home of someone he knew; the resident there called an

ambulance. Luis was transported to Temple Hospital where he

was treated for multiple injuries including a collapsed lung. Luis

was discharged from Temple Hospital on April 26, 2011.

Moments after attacking Luis, Appellant grabbed [E.P.] and

pushed her against a wall [. H] e began hitting her in her face with

a closed f ist. Appellant then forced [E.P.] to walk to his brother’s

house by grabbing her and poking her with scissors. Once they

arrived at [] Appellant’s brother’s house, they went into a

bedroom [.] [] Appellant pushed the bed against the door,

preventing [E.P.] from leaving. [] Appellant proceeded to curse at

[E.P.] and hit her about her face and body. [] Appellant then

threw [E.P.] on the floor and stabbed her in her forehead with the

scissors. At some point, [E.P.]

, who was tired and in pain, fell

asleep. When [E.P.] woke up, her clothes had been removed and

Appellant was having sex with her. Appellant eventually drove

[E.P.] to Einstein Hospital. [E.P.] was treated for multiple injuries

including lacerations on her forehead and left palm. [E.P.] was

subsequently transferred to Episcopal Hospital for a sexual assault

evaluation. She was later discharged.

Appellant was arrested on April 23, 2011. He was charged [in two

separate cases] with two counts [each] of Attempted Murder,

... Aggravated Assault,

... Possession of an Instrument of Crime,

... Simple Assault, [and] ... Recklessly Endangering Another Person,J

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- 3

-

[as well as] one count [each] of Rape,

... Kidnapping,

... Burglary,

... Intimidation of Witnesses or Victims,

... Conspiracy,

... Sexual

Assault,

... Criminal Trespass,

... Indecent Assault,

... Unlawful

Restraint,

... Terroristic Threats, and

... False Imprisonment on Bills

of Information CP

- 51

- CR

- 0008945

- 2011 and CP

- 51

- CR

- 0008946

-

2011.

A jury trial commenced on February 27, 2014. Appellant was

represented by Trevan Borum, Esquire

. At trial, the

Commonwealth presented as evidence the live testimony of (1)

[E.P.]

, (2) Luis Ramon, (3) Ricardo Ramon, (4) Police Officer

Mitchell, (5) Police Officer Moore, (6) Police Officer Bowe, (7)

Police Officer Krawcyzk, (8) Detective King, (9) Detective

Newbert, (10) Dr. Cernetich, and (11) Dr. Goldberg. The defense

did not present any witnesses.

On March 7, 2014, the jury found Appellant guilty of the following

charges on Bill of information CP

- 51

- CR

- 0008945

- 201 1:

Attempted Murder, Aggravated Assault, and Possession of an

Instrument of Crime. Appellant was found guilty of the following

charges on Bill of Information CP

- 51

- CR

- 0008946

- 2011: Rape,

Kidnapping, and Sexual Assault. On June 12, 2014, this [c]ourt

sentenced Appellant to an aggregate sentence of twenty

- two and

one

- half (22 1⁄2 ) to forty

- five (45) years’ imprisonment.

On June 18, 2014, defense counsel filed a Motion for

Reconsideration of Sentence. On October 20, 2014, Appellant’s

Motion was denied by operation of law. On October 24, 2014,

Appellant completed a Notice of Appeal form. Although timely,

defense counsel did not file the Notice; thus, the appeal period

lapsed.

On March 17, 2015, Appellant filed a pro se

... [] PCRA [] petition.

J. Matthew Wolfe, Esquire, was subsequently appointed to

represent the Appellant. [Attorney] Wolfe filed an Amended PCRA

Petition on August 20, 2015; the basis of the petition was that []

Appellant was denied his rights to due process and effective

assistance of counsel because trial counsel failed to file a direct

appeal to the Superior Court despite Appellant’s request to do so.

Appellant requested that his appellate rights as well as his right to

file post

- sentence motions be reinstated nunc pro tunc

. On April

1, 2016, this [c] ourt granted Appellant’s PCRA Petition and

reinstated Appellant’s appellate rights.

On June 6, 2018, the Superior Court affirmed Appellant’s

judgment of sentence. [ See Commonwealth v. Cruz

, 193 A.3dJ

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- 4

-

1049 (Pa. Super. 2018) (unpublished memorandum).] The

Supreme Court denied Appellant’s petition for allowance of appeal

on November 21, 2018. [ See Commonwealth v. Cruz

, 197 A.3d

1178 (Pa. 2018).] On October 15, 2019, Appel lant filed a pro se

PCRA Petition. L awrence J. O’Connor, Esquire [,] was appointed

defense counsel and an amended PCRA Petition was filed on

December 3, 2019. The Commonwealth filed its response on

March 12, 2020. On December 2, 2020, this [c] ourt sent a

[Pa.R.Crim.P.] 907 Notice of Intent to Dismiss Appellant’s PCRA

Petition. [ 1 ] On January 4, 2021, this [c] ourt denied Appellant’s

PCRA Petition. In the interim, on December 29, 2020, Appellant

prematurely filed a Notice of Appeal and a [Pa.R.A.P.] 1925(b)

[concise s] tatement [of errors complained of on appeal]

unprompted. This [c] ourt believes Appellant filed the Notice of

Appeal in response to the December 2, 2020 [] Notice of Intent to

Dismiss. In the interests of judicial economy, this [c]ourt will treat

Appellant’s Notice of Appeal as timely and properly filed from the

January 4, 2021 [] Order. [ 2 ]

_________________ __________ ______ ____ _______

1 We note that, prior to the December 2, 2020 Rule 907 notice, this Court had

remanded Appellant’s case for the filing of such notice, as the court had not

originally done so. While the court claims that it issued a Rule 907 notice on

December 2, 2020, no such order appears on the docket in either of

Appellant’s two cases. Notwithstanding, Appellant does not raise any issue

regarding the filing of the Rule 907 notice or claim that he did not receive it

. Thus, any such arguments are waived for our review. See Commonwealth

v. Taylor , 65 A.3d 462, 468 (Pa. Super. 2013) (“The failure to challenge the

absence of a Rule 907 notice constitutes waiver.”).

2 Pennsylvania Rule of Appellate Procedure 905(a)(5) provides:

A notice of appeal filed after the announceme nt of a determination

but before the entry of an appealable order shall be treated as

filed after such entry and on the day thereof.

Pa.R.A.P. 905(a)(5). Pursuant to this rule, we agree with the PCRA court that

it is appropriate to consider Appellant’s premature appeal as having been filed

on January 4, 2021, the date the court entered its final order dismissing his

petition. We have corrected the captions accordingly.J

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- 5

-

PCRA Court Opinion (PCO)

, 6/4/21, at 1

- 4 (footnotes omitted)

. On June 4,

2021, the PCRA court filed a Rule 1925(a) opinion addressing the issues set

forth in Appellant’s Rule 1925(b) statement.

Herein, Appellant states four issues for our review:

1. Whether the PCRA court erred by dismissing the PCRA petition

when clear and convincing evidence was presented to establish

that trial counsel was ineffective for failing to investigate and

present available defense evidence, failing to request and litigate

a Franks [ 3 ] hearing, and refusing to allow [A]ppellant to testify in

his own defense[?]

2. Whether the PCRA court erred by dismissing the PCRA petition

when clear and convincing evidence was presented to establish a

violation of [A]ppellant’s Sixth Amendment right to effective

representation of trial counsel, as well as the Commonwealth’s

failure to exercise due diligence in bringing [A]ppellant to trial in

violation of his speedy trial rights[?]

3. Whether the PCRA court erred by dismissing [A]ppellant’s PCRA

petition when clear and convincing evidence was presented to

establish the trial court issue d an illegal sentence by imposing a

punitive registration requirement of SORNA in violation of his due

process rights that extended the length of the sentence beyond

the statutory maximum[?]

4. Whether the PCRA court erred by failing to grant an evidentiary

hearing[?]

Appellant’s Brief at 8.

We begin by recognizing that “ [t] his Court’s standard of review from the

grant or denial of post

- conviction relief is limited to examining whether the

lower court’s determination is supported by the evidence of record and

whether it is free of legal error.” Commonwealth v. Morales

, 701 A.2d 516,

_________________ __________ ______ ____ _______

3 See Franks v. Delaware

, 438 U.S. 154 (1978).J

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- 6

-

520 (Pa. 1997) (citing Commonwealth v. Travaglia

, 661 A.2d 352, 356 n.4

(Pa. 1995)).

In Appellant’s first issue, he raises several claims of trial counsel ’s

ineffectiveness. Our Supreme Court has directed that

,

a PCRA petitioner will be granted relief only when he proves, by a

preponderance of the evidence, that his conviction or sentence

resulted from the “[ i]neffective assistance of counsel which, in the

circumstances of the particular case, so undermined the truth

determining process that no reliable adjudication of guilt or

innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii).

“Counsel is presumed effective, and to rebut that presumption,

the PCRA petitioner must demonstrate that counsel’s performance

was deficient and that such deficiency prejudiced him.”

[ Commonwealth v. ] Colavita

, ... 993 A.2d [874,] 886 [(Pa.

2010)] (citing Strickland [ v. Washington

, 466 U.S. 668

... (1984)] ). In Pennsylvania, we have refined the Strickland

performance and prejudice test into a three

- part inquiry. See

[ Commonwealth v. ] Pierce

, [527 A.2d 973 (Pa. 1987)]. Thus,

to prove counsel ineffective, the petitioner must show that: (1)

his underlying claim is of arguable merit; (2) counsel had no

reasonable basis for his action or inaction; and (3) the petitioner

suffered actual prejudice as a result. Commonwealth v. Ali

, ... 10 A.3d 282, 291 (Pa. 2010). “If a petitioner fails to prove any of

these prongs, his claim fails.” Commonwealth v. Simpson

, ... 66 A.3d 253, 260 ([Pa.] 2013) (citation omitted). Generally,

counsel’s assistance is deemed constitutionally effective if he

chose a particular course of conduct that had some reasonable

basis designed to effectuate his client’s interests. See Ali, supra

. Where matters of strategy and tactics are concerned, “a finding

that a chosen strategy lacked a reasonable basis is not warranted

unless it can be concluded that an alternative not chosen offered

a potential for success substantially greater than the course

actually pursued.” Colavita

, ... 993 A.2d at 887 (quotation and

quotation marks omitted). To demonstrate prejudice, the

petitioner must show that “there is a reaso nable probability that,

but for counsel’s unprofessional errors, the result of the

proceedings would have been different.” Commonwealth v.

King

, ... 57 A.3d 607, 613 ([Pa.] 2012) (quotation, quotation

marks, and citation omitted). “‘[A] reasonable probability is aJ

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-

probability that is sufficient to undermine confidence in the

outcome of the proceeding.’” Ali

, ... 10 A.3d at 291 (quoting

Commonwealth v. Collins

, ... 957 A.2d 237, 244 ([Pa.] 2008)

(citing Strickland

, 466 U.S. at 694....)).

Commonwealth v. Spotz

, 84 A.3d 294, 311

- 12 (Pa. 2014).

Here, Appellant presents three distinct sub

- claims of trial counsel’s

ineffectiveness. F irst

, he contends that his counsel was ineffective for refusing

to allow Appellant to testify

, despite that Appellant “specifically communicated

to trial counsel his decision to testify in his own defense.” Appellant’s Brief at

14. Appellant claims that “[c]ounsel offered no explanation to [A]ppellant as

to the decision to not present his testimony as a witness.” Id. He maintains

that his underlying claim has arguable merit because counsel’s conduct

violated his F ifth A mendment right to testify in his own defense. Id. Appellant

further avers that “[t]he reasonableness prong was satisfied because counsel

failed to explain the decision to preclude [A]ppellant’s testimony, and because

the refusal to present [A]ppellant’s testimony was not reasonably designed to

advance the interests of [Appellant].” Id.

Second, Appellant claims that his trial counsel was ineffective for not

filing a motion to suppress and seeking a Franks hearing. As our Supreme

Court recognized in Commonwealth v. Iannoccio

, 480 A.2d 966 (Pa. 1984):

[ Franks ] held that, where a defendant makes a substantial

preliminary showing that a false statement was knowingly and

deliberately, or with reckless disregard for the truth

, included by an affiant in his application for a search warrant and

where the alleged false statement was necessary to a finding of

probable cause, the Fourth Amendment requires that a hearing be

held at defendant ’ s request so that he might challenge the

veracity and integrity of the warrant.J

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- 8

-

Id. at 974 n.4 (emphasis added). In this case

, Appellant argues that

[t]he Affidavit of Probable Cause contained information that was

material to the finding of probable cause that was provided by the

complaining witness and was patently false. Complainant [E.P.]

lied to police during their investigation of the case in order to

divert attention away from her commission of the assault on

complainant Luis Ramon. Arguable merit was established based

on counsel’s failure to protect [A]ppellant’s due process and

Fourth Amendment rights. Counsel’s failure to explain the tactics

utilized satisfies the reasonableness standard, and both prongs of

the ineffectiveness test were established.

Appellant’s Brief at 14.

In his third sub

- claim of ineffectiveness

, Appellant insists that his trial

counsel fail ed “to properly cross

- examine complaining witness [E.P.] ....” Id.

at 15. According to Appellant, “[p]roper cross

- examination would have

revealed her corrupt motive to present perjured testimony, [and] her biases,

prejudices and ulterior motives that relate directly to the issues in this case.

Counsel failed to develop evidence that placed into question the credibility of

the witness.” Id. (citation omitted). These failures, Appellant contends,

violated his right to confront the witnesses against him, and lacked any

reasonable basis on the part of his counsel.

Appellant maintains that each of these three errors by counsel

— i.e.

,

refusing to put Appellant on the stand, not seeking suppression and a Franks

hearing, and not properly cross

- examining E.P.

— caused an adverse e ffect

on his defense at his trial, and cumulatively caused him prejudice to a degree

that a new trial is warranted.J

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- 9

-

We disagree. First, “ [c] laims alleging ineffectiveness of counsel

premised on allegations that trial counsel ’ s actions interfered with an

accused ’ s right to testify require a defendant to prove either that ‘ counsel

interfered with his right to testify

, or that counsel gave specific advice so

unreasonable as to vitiate a knowing and intelligent decision to testify on his

own behalf. ’ ” Commonwealth v. Miller

, 987 A.2d 638, 660 (Pa. 2009)

(quoting Commonwealth v. Nieves

, 746 A.2d 1102, 1104 ( Pa. 2000) ).

Appellant has not met this burden of proof. W hile he contends that

counsel refused to put him on the stand, the record belies this claim. As the

PCRA court points out, Appellant was thoroughly colloquied about his decision

not to testify. See PCO at 11

- 12 (quoting N.T. Trial, 3/5/14, at 74

- 76).

Notably, the court informed Appellant that he had “an absolute right to testify

in this matter,” and Appellant expressly stated that he did not wish to do so.

Id. (citation omitted). The court stressed that the decision was “totally up to”

Appellant, and he stated that he understood. Id. (citation omitted). Appellant

confirmed that no one had forced or threatened him to make t h e decision not

to testify, and that he was doing so of his own free will

. Id. (citation omitted).

Finally, Appellant stated that he was satisfied with the representation of his

counsel. Id. (citation omitted).

In rejecting Appellant’s “speculative claim that he ‘specifically

communicated to trial counsel his decision to testify in his own defense[, ]’”

the PCRA court observed that he did not provide “any evidence in furtherance

of this claim,” especially considering the colloquy discussed supra

. Id. at 12.J

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-

Thus, the court concluded that “Appellant’s claim is speculative, undeveloped,

and wholly unsubstantiated by the record.” Id. We discern no error or abuse

of discretion in the court’s decision . Thus, no relief is due on Appellant’s first

sub

- claim of ineffectiveness

.

T he PCRA court also rejected Appellant’s second assertion that his

counsel was ineffective for not filing a motion to suppress or seeking a Franks

hearing . The court noted that “Appellant [did] not present any evidence or

specific argument in furtherance” of this claim

. Id. at 9. More specifically,

the court explained:

Appellant

... claim[s] that the complaining witness es

, including

[E.P.

, ] conspired to lie and, thus,

... the affidavit of probable cause

was “patently false[.”] However, Appellant does not allege what

evidence exists that would have impeached the affidavit,

specifically how and in what capacity the complaining witness lied,

nor does Appellant cite those specific facts he claims were

fabricated based on false testimony. Accordingly, Appellant’s

claim should be dismissed because it is unsubstantiated,

undeveloped, and without evidentiary support in the record.

Id. The court also stresse d that “Appellant has failed to articulate on what

basis trial counsel should have filed a Franks motion and why said motion

would have succeeded” and, thus

, he cannot prove “that the filing of one

would have been strategically and tactically advantageous.” Id.

Consequently, the court maintained that it had properly dismissed Appellant’s

“speculat ive and spurious” ineffectiveness claim. Id. at 10.

On appeal, A ppellant again offers no elaboration of what factual

averments in the affidavit of probable cause were ostensibly untrue, or any

discussion of how the affiant “knowingly and deliberately, or with recklessJ

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- 11

-

disregard for the truth,” included such untruths in the affidavit of probable

cause. Iannoccio

, 480 A.2d at 974 n.4. Thus, Appellant has failed to prove

that a Franks hearing would have been g ranted, had counsel sought one.

Appellant also fails to discuss what other arguments counsel could have,

or should have, raised in a motion to suppress. This Court has stated:

When briefing the various issues that have been preserved, it is

an appellant’s duty to present arguments that are sufficiently

developed for our review. The brief must support the claims with

pertinent discussion, with references to the record and with

citations to legal authorities. Citations to authorities must

articulate the principles for which they are cited.

This Court will not act as counsel and will not develop arguments

on behalf of an appellant. Moreover, when defects in a brief

impede our ability to conduct meaningful appellate review, we

may dismiss the appeal entirely or find certain issues to be

waived.

Commonwealth v. Hardy

, 918 A.2d 766, 771 (Pa. Super. 2007).

Consequently

, we agree with the PCRA court that Appellant’s second sub

- claim

of ineffectiveness is meritless and/or waived

.

The same is true for Appellant’s third ineffectiveness sub

- claim, in which

he contends that counsel ineffectively cross

- examined E.P

. Appellant offers

no elaboration on what corrupt motives, biases, or prejudices about which his

attorney failed to questio n E.P

. While he also complains that counsel “failed

to recall [ E.P. ] during the defense’s case

- in

- chief, despite repeated requests

by [A]ppellant[,]” he does not explain why he wanted to recall E.P.

, or how

he was prejudiced by counsel’s failure to do so. In sum, Appellant fails to

meaningfully develop any argument regarding counsel’s cross

- examination ofJ

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-

E.P. or his failure to recall her as a defense witness that would establish that

counsel acted ineffectively. Thus, Appellant’s third sub

- claim challenging

counsel’s representation is waived and does not warrant relief. See Hardy

,

supra

.

Moving on to Appellant’s second issue, he contends that he is entitled

to relief because he established in his petition that his conviction resulted from

“[a] violation of the Constitution of this Commonwealth or the Constitution or

laws of the United States which, in the circumstances of the particular case,

so undermined the truth

- determining process that no reliable adjudication of

guilt or innocence could have taken place. ” 42 Pa.C.S. § 9543(a)(2)(i). In

support, Appellant cursorily reiterates that his right to testify in his own

defense, and his right to effective assistance of counsel, were violated for the

reasons set forth in his first issue. Because we found those claims

undeveloped and/or meritless, he has failed to prove his constitutional rights

were violated.

Additionally, Appellant contends that his constitutional right to a speedy

trial was violated because he “waited over [three] years” between his arrest

and trial. Appellant’s Brief at 17. Appellant ’s claim implicates Pa.R.Crim.P.

600, which “ has the dual purpose of both protecting a defendant ’ s

constitutional speedy trial rights and protecting society ’ s right to effective

prosecution of criminal cases. ” Commonwealth v. Bradford

, 46 A.3d 693,

701 (Pa. 2012) ( citations omitted). The Bradford Court continued:J

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-

To protect the defendant ’ s speedy trial rights, Rule 600 ultimately

provides for the dismissal of charges if the Commonwealth fails to

bring the defendant to trial within 365 days of the filing of the

complaint (the “mechanical run date”), subject to certain

exclusions for delays attributable to the defendant. Pa.R.Crim.P.

600(A)(3), (G). Conversely, to protect society ’ s right to effective

prosecution prior to dismissal of charges, [R] ule 600 requires the

court to consider whether the [C] ommonwealth exercised due

diligence, and whether the circumstances occasioning the delay of

trial were beyond the Commonwealth ’s control. If the

Commonwealth exercised due diligence and the delay was beyond

the Commonwealth ’ s control, “the motion to dismiss shall be

denied.” Pa.R.Crim.P. 600(G). The Commonwealth, howev er,

has the burden of demonstrating by a preponderance of the

evidence that it exercised due diligence. As has been oft stated,

[d]ue diligence is fact

- specific, to be determined case

- by

- case; it

does not require perfect vigilance and punctilious care, but merely

a showing the Commonwealth has put forth a reasonable effort.

“ If, at any time, it is determined that the Commonwealth did not

exercise due diligence, the court shall dismiss the charges and

discharge the defendant. ” Pa.R.Crim.P. 600(G).

Id. at 701

- 02 (some internal citations and quotation marks omitted).

In the present case, we first observe that Appellant’s counsel filed

several Rule 600 motions seeking Appellant’s release from incarceration and

the dismissal of the charges against him. Appellant offers no explanation for

why he did not, or could not, have challenge d the trial court’s rulings on these

motions on direct appeal , thus waiving any p ost

- conviction assertion that the

court violated his constitutional right to a speedy trial. See 42 Pa.C.S. §

9543(a)(3) (stating that, to be eligible for PCRA relief, a petitioner must prove

“[ t]hat the allegation of error has not been previously litigated or waived ”);

42 Pa.C.S. § 9544(b) (“ For purposes of this subchapter, an issue is waived if

the petitioner could have raised it but failed to do so before trial, at trial,J

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- 14

-

during unitary review, on appeal or in a prior state post [

- ] conviction

proceeding. ”).

Moreover, we also deem waived Appellant’s cursory attempt to frame

this claim as a challenge to his trial counsel’s representation. A side from

briefly stating that this “constitutional claim[] cannot be deemed waived by

counsel’s failure to raise it[,]” Appellant’s offers no developed discussion of

the three prongs for proving counsel’s ineffectiveness. Appellant’s Brief at 17.

Instead, his entire argument in support of his Rule 600 claims is as follows:

The Commonwealth’s failure to exercise due diligence in br i n g ing

[A]ppellant to trial substantially prejudiced him and had an

adverse effect on the outcome of the case. Appellant waited over

3 years before trial, well in excess of the 12 months required by

law. S everal continuances were considered by the court to be

defense continuances, and the time was ruled excludable.

However, [A]ppellant was not aware of the nature of these

continuances and did not agree to them. More importantly, the

Commonwealth consistently failed to exercise [its] due diligence

because [it] failed to advise the court at each continuance of the

mechanical and adjusted run dates. A defense continuance is

certainly excludable time and extends the adjusted run date, but

it does not relieve the Commonwealth of its responsibility to

advise the court of the mechanical and adjusted time limits

pursuant to [A]ppellant’s speedy trial and Rule 600 rights. The

Commonwealth’s failure to exercise due diligen ce resulted in an

egregious violation of [A]ppellant’s right to a speedy trial. A

reliable determination of guilt was not made at trial because the

case should have been dismissed based on the violation of

Appellant’s speedy trial rights.

Id. at 17

- 18.

In rejecting Appellant’s Rule 600 claim, the PCRA court explained that:

[T]he record demonstrates that several Rule 600 motions were

filed. Some of these motions sought release from pretrial

incarceration; others sought dismissal of the charges againstJ

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- 15

-

Appellant. Appellant’s [Rule] 1925(b) Statement does not clarify

which motion is the subject of the instant appeal, nor does [he]

specify how the [c]ourt erred. Appellant claims vaguely that he

was not aware of the continuances requested by counsel, and that

he would not have agreed to them as such. A s our appellate

courts have recognized, when a [d]efendant fails to adequately

“identify in a concise manner the issues sought to be pursued on

appeal, the trial court is impeded in its preparation of a legal

analysis which is pertinent to those issues.” In re Estate of

Daubert

, 757 A.2d 962, 963 (Pa. Super. 2000). “In other words,

a Concise Statement which is too vague to allow the court to

identify the issues raised on appeal is the functional equivalent t o

no Concise Statement at all.” Commonwealth v. Dowling

, 778

A.2d 683, 686

- 87 (Pa. Super. 2001). Since Appellant fails to

adequately identify the issue sought to be pursued on appeal, this

claim is waived.

PCO at 14.

Like in his Rule 1925(b) statement, Appellant does not specifically state

in his appellate brief what defense continuances were requested and granted

without his consent. He also does not explain exactly how the Commonwealth

failed to exercise due diligence, aside from stating that it did not inform the

court at each continuance of the mechanical and adjusted run dates.

However, Appellant cites no case law to support that this purported failure by

the Commonwealth would alone consti tute a violation of its obligation to act

with due diligence. More importantly, he does not explain how his trial counsel

acted ineffectively in litigating the Rule 600 motions, and any challenge to the

court’s denial of those motions is waived due to Appellant’s failure to raise it

on direct appeal. Thus, we discern no error in the PCRA court’s dismissal of

Appellant’s waived, undeveloped

, and legally unsupported argument

regarding Rule 600

. See Hardy

, supra

.J

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- 16

-

In light of our disposition of Appellant’s first two issues, we reject his

argument

— raised in his fourth issue on appeal

— that an evidentiary hearing

is warranted on his ineffectiveness or Rule 600 claims. See Appellant’s Brief

at 19

- 20. However, for the followi ng reasons, we conclude that further

proceedings are required on Appellant’s third issue, in which he argues that

the court imposed an illegal sentence by mandating that Appellant register as

a sex offender for life under Tier III of SORNA. In support of his claim,

Appellant explains that,

[s]ubsequent to the imposition of [his] sentence, the Pennsylvania

Supreme Court deemed SORNA unconstitutional as applied to

certain registrants in Commonwealth v. Muniz [,] 164 A. [3] d

1198 ([Pa.] 2017). The [C]ourt determined that [SORNA] was

indeed punitive in nature. As applied to [A]ppellant..., the

imposition of the Tier [III] SORNA registration requirement

incurred upon him a punitive sanction for life, well in excess of the

combined mandatory sentenc es for all the crimes for which he was

convicted and sentenced. Effectively, [A]ppellant

... was

sentenced to some form of punishment for the term of his life.

Because a life sentence is greater than the statutory maximum for

all the combined sentences applied to him, the sentence imposed

must be deemed illegal.

Appellant’s Brief at 18

- 19.

Appellant also insists that “the SORNA registration [requirement]

violated [his] due process rights based on the Act’s declaration that registrants

are highly likely to repeat their behavior and are dangerous.” Id. at 19. H e

avers :

The Act does not provide [A]ppellant any opportunity to prove that

he is not highly likely to repeat the offense or similar behaviors,

and that issue was never established during trial. As such,

[A]ppellant was never provided the opportunity to defend himself

on this issue, which amounts to a denial of his due process rights.J

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-

Further, protection of his reputation is a recognized fundamental

right under the Pennsylvania Constitution. Effectively, SORNA

registration denied [A]ppellant his right to reputation through the

presumption that he is dangerous and a high risk to repeat

sexually criminal behavior. Without any evidence to support this

presum ption, [A]ppellant was effectively denied his fundamental

right of reputation as recognized by the Pennsylvania Constitution.

Appellant

... was entitled to relief based on the imposition of an

illegal sentence, and the PCRA court erred by dismissing the

petition.

Id.

Again, Appellant fails to cite or discuss any legal authority to support his

arguments. Nevertheless, his legality

- of

- sentencing claim cannot be waived

and, for the following reasons, we conclude that it warrants relief.

In Muniz

, our Supreme Court held that SORNA is punitive in nature and

that its retroactive application to defendants whose crimes were committed

prior to its enactment violate s the ex post facto clause of the United States

and Pennsylvania Constitutions. See Muniz

, 16 4 A.3d at 1219

- 23. Following

Muniz

, and Commonwealth v. Butler

, 173 A.3d 1212 (Pa. Super. 2017),

rev'd

, 226 A.3d 972 ( Pa. 2020), the Pennsylvania General Assembly enacted

legislation to amend SORNA

. See Act of Feb. 21, 2018, P.L. 27, No. 10 (Act

10). Act 10 amended several provisions of SORNA

, and also added several

new sections found at 42 Pa.C.S. §§ 9799.42, 9799.51

- 9799.75. In addition,

the Governor of Pennsylvania signed new legislation striking the Act 10

amendments and reenacting several SORNA provisions, effective June 12,

2018. See Act of June 12, 2018, P.L. 1952, No. 29 (Act 29). Through Act 10,

as amended in Act 29 (collectively, SORNA II), the General Assembly splitJ

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-

SORNA ’s former Subchapter H into a Revised Subchapter H and Subchapter I.

Subchapter I addresses sexual offenders who , like Appellant, committed an

offense on or after April 22, 1996, but before December 20, 2012. See 42

Pa.C.S. §§ 9799.51

- 9799.75. Subchapter I contains less stringent reporting

requirements than Revised Subchapter H, which applies to offenders who

committed an offense on or after December 20, 2012. See 42 Pa.C.S. §§

9799.10

- 9799.42.

In the case sub judice

, Appellant committed his offenses in April of 2011,

before SORNA became effective on December 20, 2012. Thus, under the

rationale of Muniz

, applying SORNA to Appellant seemingly violate s the ex

post facto clause of the United States Constitution, rendering his current

sentence illegal. The PCRA court, however, concluded that Muniz is

distinguishable for the reasons set forth by this Court in Commonwealth v.

Haughwout

, 198 A.3d 403 (Pa. Super. 2018)

, appeal denied

, 207 A.3d 905

(Pa. 2019). There, Haughwout was convicted of indecent assault in 2002 and

was subject to lifetime registration requirements under Megan’s Law I.

Haughwout

, 198 A.3d at 404. In 2015, he pled guilty to failing to comply

with his registration requirements and was sentenced to a term of

incarceration. Id. On appeal, Haughwout argued that this Court should

vacate his conviction for failing to comply with his registration requirements,

insisting that Muniz “rendered SORNA unconstitutional in its entirety and that

prior law under which Appellant was deemed a lifetime registrant cannot be

revived.” Id. at 405. In rejecting Haughwout’s argument, we stressed thatJ

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- 19

-

“the Muniz [C]ourt did not find SORNA unenforceable in all contexts; rather

the Supreme Court held that SORNA was unconstitutional as applied to Muniz

because it changed his registration requirement from ten years to lifetime

registration, and thus, increased his punishment for indecent assault after he

committed the offense.” Id. (emphasis in original). Because Haughwout “was

subject to lifetime registration upon his initial conviction and the enactment

of SORNA did not change his reporting period[,]” we found that his case was

distinguishable from Muniz and his sentence was legal. Id.

Analogizing Haughwout to the present case, the PCRA court explains:

In this case, Appellant’s reliance on

... Muniz

... is misplaced

because, similar to

... Haughwout

, Appellant was subject, at the

time of his conviction and sentencing, to lifetime registration

. Accordingly, neither the enactment of SORNA nor the Supreme

Court’s holding in Muniz affect Appellant’s lifetime registration

requirement, nor do they change Appellant’s punishment ex post

facto because Appellant was already subject to lifetime

registration under his initial conviction and sentencing

. Unlike the

defendant in

... Muniz

..., in this case SORNA did not in any

capacity change the requirements of Appellant’s sexual offender

registration. Therefore, similar to the holding in

... Haughwout

..., because SORNA did not change Appellant’s lifetime registration

requirement, the Pennsylvania Supreme Court’s holding in Muniz

is inapplicable to the present matter and Appellant’s claim should

be dismissed.

PCO at 18

- 19.

We disagree with the PCRA court’s conclusion. Initially, there appears

to be a split between Haughwout and other cases by this Court holding that

SORNA ’s retr o active application i s unconstitutional even though it d oes not

change the defendant’s prior registration requirement s

. See

, e.g.

,J

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- 20

-

Commonwealth v. Horning

, 193 A.3d 411, 416

- 17 (Pa. Super. 2018)

(holding that SVP registration under SORNA violated Muniz even though the

defendant would have been required to register for his lifetime under Megan ’ s

Law II ; al though the defendant ’ s registration period remained the same,

SORNA “augment[ed] the registration requirements

... , which included

quarterly in

- person reporting and the posting of [ ] personal information on

the Pennsylvania State Police website”), appeal denied

, 204 A.3d 370 (Pa.

2019 ) ; Commonwealth v. Moore

, 2018 WL 4610153 (Pa. Super. 2018)

(unpublished memorandum) (relying on Horning to reach same result).

Moreover, our rationale in Haughwout has been undercut by our

Supreme Court’s more recent decision in Commonwealth v. Santana

, 266

A.3d 528 (Pa. 2021) . There, Santana had committed rape in New York in

1983

, and was subject to a lifetime registration requirement in New York after

it passed its “Sex Offender Registration Act” (SORA) in 1995. Id. at 530.

When Santana moved to Pennsylvania in 2015, he was automatically subject

to lifetime registration requirements under SORNA. Id. Santana was

subsequently arrested and pled guilty to failing to comply with his SORNA

registration requirements. Id. at 531. On appeal, Santana argued that

applying SORNA to him constituted an ex post facto violation under the

rationale of Muniz

. The Commonwealth, however, insisted that Muniz did

not apply “because Santana did not face an increase in punishment when he

moved from New York to Pennsylvania.” Id. at 535. I t also argued “that

Muniz was not an all

- encompassing constitutional ruling. Rather,

... this CourtJ

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-

held that SORNA was only unconstitutional when its after

- the

- fact application

increased an offender’s reporting and registration obligations from ten years

to a lifetime. Only then would SORNA function as an increase in punishment.”

Id.

The Santana Court rejected the Commonwealth’s position , stressing

that

[t ] he question is not whether SORA and SORNA impose the same

or different registration periods. The analysis does not examine

whether a new resident ’ s crossing of Pennsylvania's borders

actually increased the length of Santana ’ s punishment. It does

not even matter where Santana committed the triggering offense.

For present purposes, what matters most is when that crime

occurred.

Id. at 536 (emphasis in original). The Court further clarified that its statement

of ex post facto law in Muniz “was incomplete [,]” as “[t]he United States

Constitution does not require a defendant to prove that he, in fact, was

disadvantaged by the retroactively applied law.” Id. ; see also California

Dept. of Corrections v. Morales

, 514 U.S. 499 (1995) (“[T]he focus of the

ex post facto inquiry is not on whether a legislative change produces some

ambiguous sort of ‘disadvantage,’

... but on whether any such change alters

the definition of criminal conduct or increases the penalty by which a crime is

punishable.”). T he Court then distilled the ex post facto analysis to the

following questions: “First, a court must ask when the initial offense was

committed. Second, the court must ask whether the challenged law was

enacted after the occurrence of the triggering offense and was then applied

retroactively. If so, the final question is whether that retroactive law isJ

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punitive or increases the penalty for the existing crime. ” Id. at 537 (emphasis

added).

Because Santana committed his initial offense in 1983, SORNA was

clearly being applied to him retroactively, and SORNA was declared punitive

in Muniz

, “SORNA’s application t o Santana [was] an ex post facto law.” Id.

at 539. The Court clarified that Muniz should not be read as holding that

SORNA is unconstitutional only as applied to Muniz or similarly situated

defendants. 4 T he Court explained that, instead, its “ ex post facto analysis [in

Muniz ] was based upon an objective review of SORNA ’ s statutory elements.

We analyzed those elements for the impact that they had on all Tier III

offenders. Nothing about our decision implies that the statute was

unconstitutional only as to Muniz himself, or based upon his unique

circumstances. ” Id.

Here, as in Muniz and Santana

, Appellant committed his crime pre

SORNA

, and that statute was clearly applied to him retroactively. As Santana

clarifies, Muniz held that SORNA is punitive and cannot be retroactively

applied to someone whose crime was committed prior to SORNA’s effective

date. Thus, it is irrelevant whether Appellant’s length of registration increased

with the passage of SORNA; its application to him constitutes an ex post facto

_________________ __________ ______ ____ _______

4 Muniz was convicted of indecent assault in 2007, at which time his offenses

would require him to register as a sex offender for ten years under then

effective Megan’s Law III. See Muniz , 164 A.3d at 1193. Muniz absconded

before his sentencing hearing and was not arrested an d sentenced until 2014.

At that point, Megan’s Law III had been replaced by SORNA, which subjected

Muniz to lifetime registration as a sex offender.J

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-

law that renders his registration requirements under SORNA illegal.

Accordingly, we vacate Appellant’s registration requirements under SORNA

and remand for the court to impose, and provide proper notification of, the

applicable registration requirements under Subchapter I of SO RNA II. 5

Order vacated. SORNA r egistration requirements vacated. Case

remanded for imposition and notification of SORNA II registration

requirements. Jurisdiction relinquish ed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/24/2022

_________________ __________ ______ ____ _______

5 Our Supreme Court has held that Subchapter I o f SORNA II is not punitive

and, therefore, it may be ret roactively applied to Appellant. See

Commonwealth v. Lacombe , 234 A.3d 602, 627 (Pa. 2020).