[J-33-2016] 

IN THE SUPREME COURT OF PENNSYLVANIA 

MIDDLE DISTRICT 

SAYLOR, C.J., EAKIN, BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ. 

COMMONWEALTH OF PENNSYLVANIA, 

 Appellee 

 v. 

THOMAS MICHAEL LUTZ-MORRISON, 

 Appellant 

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No. 28 MAP 2015 

Appeal from the Order of the Superior 

Court at No. 1659 MDA 2013 dated 

September 18, 2014 Affirming the 

Judgment of Sentence of the Court of 

Common Pleas of Lancaster County, 

Criminal Division, dated August 16, 

2013 at No. CR-36-0003611-2012. 

ARGUED: March 8, 2016 

OPINION 

JUSTICE DOUGHERTY DECIDED: August 15, 2016 

Appellant Thomas Lutz-Morrison presents an issue similar to the issue posed in 

A.S. v. Pa. State Police, __ A.3d __ (Pa. 2016), also decided today. A.S. involved the 

proper construction of the lifetime-registration triggering language “two or more 

convictions” in Megan’s Law II, Pennsylvania’s former sex offender registration statute. 

See 42 Pa.C.S. §9795.1(b)(1) (superseded). This appeal concerns nearly identical 

triggering language brought over into Section 9799.14 of Pennsylvania’s current statute, 

Act 111 of 2011, the Sex Offender Registration and Notification Act (SORNA), 42 

Pa.C.S. §§9799.10-9799.41. Our holding here follows from A.S. and, as explained 

below, we reverse and remand. 

Megan’s Law II included a two-tier system for those offenders subject to its 

registration requirement. 42 Pa.C.S. §9795.1(a),(b) (superseded). The history and 

background of SORNA has been detailed in other cases. See, e.g., In re J.B., 107 A.3d 
[J-33-2016] - 2 

1, 3-9 (Pa. 2014). For our purposes it is enough to reiterate SORNA “added crimes to 

the list defined as sexually violent offenses, and established a three-tiered system for 

classifying such offenses and their corresponding registration periods.” Commonwealth 

v. Farabaugh, 128 A.3d 1191, 1192 (Pa. 2015). The tiers provide for registration 

periods of fifteen years (Tier I), twenty-five years (Tier II), or lifetime (Tier III), depending 

on the offense(s) and/or circumstances. See 42 Pa.C.S. §9799.15(a)(1)-(3). 

 

 Section 9799.14 of SORNA, as relevant here, provides: 

 (a) Tier system established. — Sexual offenses shall be classified in a 

three-tiered system composed of Tier I sexual offenses, Tier II sexual 

offenses and Tier III sexual offenses. 

 (b) Tier I sexual offenses. — The following offenses shall be classified as 

Tier I sexual offenses: 

* * * * 

 

 (9) 18 Pa.C.S. § 6312(d) (relating to sexual abuse of children). 

* * * * 

 (c) Tier II sexual offenses. — The following offenses shall be classified 

as Tier II sexual offenses: 

* * * * 

 (d) Tier III sexual offenses. — The following offenses shall be classified 

as Tier III sexual offenses: 

 (1) 18 Pa.C.S. § 2901(a.1) (relating to kidnapping). 

 (2) 18 Pa.C.S. § 3121 (relating to rape). 

 (3) 18 Pa.C.S. § 3122.1(b) (relating to statutory sexual assault). 

 (4) 18 Pa.C.S. § 3123 (relating to involuntary deviate sexual 

intercourse). 

 (5) 18 Pa.C.S. § 3124.1 (relating to sexual assault). 

 (6) 18 Pa.C.S. § 3124.2(a.1). 
[J-33-2016] - 3 

 (7) 18 Pa.C.S. § 3125 (relating to aggravated indecent assault). 

 (8) 18 Pa.C.S. § 3126(a)(7). 

 (9) 18 Pa.C.S. § 4302(b) (relating to incest). 

 (10) 18 U.S.C. § 2241 (relating to aggravated sexual abuse). 

 (11) 18 U.S.C. § 2242 (relating to sexual abuse). 

 (12) 18 U.S.C. § 2244 where the victim is under 13 years of age. 

 (13) A comparable military offense or similar offense under the laws 

of another jurisdiction or country or under a former law of this 

Commonwealth. 

 (14) An attempt, conspiracy or solicitation to commit an offense 

listed in paragraph (1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12) or 

(13). 

 (15) (Reserved). 

 (16) Two or more convictions of offenses listed as Tier I or Tier 

II sexual offenses. 

42 Pa.C.S. §9799.14(a)-(d) (emphasis added). 

The background of the underlying criminal prosecution is as follows. An 

investigation led police to secure a search warrant for a residence in Lancaster County, 

where appellant lived with his mother and brother. A March 2, 2012, search led to the 

seizure of four computers and an Apple iPhone 4. On the same day, appellant admitted 

to detectives he had downloaded child pornography files to his computer. An 

examination revealed 142 child pornography videos and 45 child pornography images 

on the computer along with 15 child pornography images on appellant’s iPhone. 

Appellant was charged with 77 counts of sexual abuse of children (possession of child 

pornography). See 18 Pa.C.S. §6312(d).1 

 

1

 Section 6312 is entitled “Sexual abuse of children.” Subsection (d) provides: 

(continuedL) 
[J-33-2016] - 4 

On August 16, 2013, the twenty-two-year-old appellant entered an open plea of 

guilty to three counts of possession of child pornography; the remaining charges were 

withdrawn by the Commonwealth. That same day, appellant was sentenced to 

consecutive one-year terms of probation on each count. The trial court also notified 

appellant his convictions subjected him to lifetime registration under SORNA as a Tier 

III offender. Appellant reserved an objection to that classification, averring the statute 

was ambiguous, and the only reason it arguably was triggered was because his plea 

encompassed more than one count. 

In its Pa.R.A.P. 1925(b) opinion, the trial court reasoned each count of 

possessing child pornography represented a Tier I sexual offense and conviction. 

Based on a plain reading of the statute and the Opinion in Support of Affirmance (OISA) 

in Commonwealth v. Gehris, 54 A.3d 862 (Pa. 2012) (construing predecessor “two or 

more convictions” provision in Megan’s Law), the court concluded the “two or more 

convictions of offenses” necessary to trigger lifetime registration may arise from the 

same criminal information. Thus, the court found appellant was a Tier III offender 

subject to lifetime reporting. 

On appeal to the Superior Court, appellant claimed he should be classified as a 

Tier I offender because his multiple Tier I convictions arose from a single nonviolent 

course of conduct, and his plea occurred in a single hearing. The Superior Court 

affirmed in a memorandum opinion. The panel recognized this Court deadlocked 3-3 on 

 

(Lcontinued) 

(d) Child pornography. — Any person who intentionally views or 

knowingly possesses or controls any book, magazine, pamphlet, slide, 

photograph, film, videotape, computer depiction or other material depicting 

a child under the age of 18 years engaging in a prohibited sexual act or in 

the simulation of such act commits an offense. 

 18 Pa.C.S. §6312(d). 
[J-33-2016] - 5 

a similar question in the Megan’s Law context in Gehris, with an OISA by Justice Todd 

(joined by former Justices Eakin and McCaffery) and an Opinion in Support of Reversal 

(OISR) by former Chief Justice Castille (joined by Justices Saylor (now Chief Justice) 

and Baer. After summarizing the competing Gehris opinions, the panel determined its 

own precedent in Commonwealth v. Merolla, 909 A.2d 337 (Pa. Super. 2006), 

controlled. In the panel’s view, nothing in SORNA’s language warranted an 

interpretation differing from Merolla’s construction of the similar language in Megan’s 

Law. Accordingly, the panel held the plain language of SORNA required that appellant, 

who had three “convictions” of Tier I offenses, be subject to lifetime registration. The 

panel was aware of the contrary holding of the Commonwealth Court iteration of A.S. v. 

Pa. State Police, 87 A.3d 914 (Pa. Cmwlth. 2014) (en banc), but declined to follow that 

decision given its obligation to follow its own precedent. 

This Court granted review of the question whether appellant is properly subject to 

lifetime reporting under SORNA. The issue involves statutory interpretation and 

application, which presents a question of law; thus our review is plenary and nondeferential. See, e.g., Commonwealth v. Conklin, 897 A.2d 1168, 1175 (Pa. 2006). 

In the course of their arguments, both parties recognize the “two or more 

convictions” language in SORNA was also present in Megan’s Law and thus was 

subject to examination in cases like Gehris, Merolla, and A.S. Thus, in addition to 

disputing whether the SORNA provision is ambiguous and whether it implicates “the 

recidivist philosophy,” and forwarding supporting arguments implicating statutory 

construction, appellant invokes the Gehris OISR and A.S., while the Commonwealth 

relies upon Merolla.

Given the focus in the lower courts and the present briefing upon the Megan’s 

Law cases, and the absence of any suggestion that anything in SORNA would lead to a 
[J-33-2016] - 6 

different result on the question of the proper meaning of the term “two or more 

convictions,” resolution of this appeal is straightforward: it is effectively controlled by 

today’s decision in A.S.2,3 We will not repeat the A.S. analysis at length here as 

appellant’s case developed under similar circumstances: he was charged in a single 

information arising from the search of his property; he entered court as a first-time 

offender on those charges and pled guilty to three counts — all Tier I offenses; and 

there were no direct victims of his crimes, much less multiple direct victims.4 It is 

 

2

 We are aware of a textual distinction between the two statutory regimes. Under the 

two-tier system of Megan’s Law, lifetime registration was required for “[a]n individual 

with two or more convictions of any of the offenses set forth in subsection (a),” i.e., for 

offenses otherwise subject to ten-year registration. 42 Pa.C.S. §9795.1(a)-(b) 

(superseded) (emphasis added). Under SORNA’s three-tier system, lifetime registration 

is required for offenders with “two or more convictions of offenses listed as Tier I or Tier 

II sexual offenses,” i.e., for offenses otherwise subject to fifteen-year or twenty-five-year 

registration. 42 Pa.C.S. §9799.14(d). No argument is forwarded in the briefs premised 

upon the General Assembly’s deletion of the words “any of the” in SORNA. 

3

 Appellant’s brief was prepared by private counsel. On the eve of argument, however, 

the Defender Association of Philadelphia, which was not appointed and which had not 

filed a brief as amicus curiae, entered an appearance as counsel for appellant and an

assistant defender presented oral argument. Counsel’s oral presentation included 

several sophisticated arguments not pursued in appellant’s brief, including, inter alia, a 

claim of ambiguity premised upon the textual differences between Megan’s Law and 

SORNA; a claim the statute is subject to strict construction because, in other 

circumstances not present here, it applies retroactively, see 1 Pa.C.S. §1928(b)(2) 

(retroactive provisions “shall be strictly construed”); and a claim that “sequential 

prosecutions” should be required to trigger the recidivist provision. 

These claims were not outlined or developed in appellant’s brief. In addition, it appears 

the Commonwealth, like the Court, was not provided a written exposition of the new 

theories and points presented at oral argument. Under the circumstances, for purposes 

of decision, we will confine ourselves to the arguments outlined in the briefs. 

4

 We do not dispute the Commonwealth’s argument that each image of child 

pornography possessed represents a separate, independent crime, see Appellee’s Brief 

at 12-13, citing Commonwealth v. Davidson, 938 A.2d 198, 219 (Pa. 2007) (“Each use 

of a minor to create a visual depiction of child pornography constitutes a separate and 

distinct abuse of that child, and thus represents an individual violation of the statute.”), 

and appellant in fact was convicted and sentenced for his multiple crimes. But, for 

(continuedL) 
[J-33-2016] - 7 

enough to note we hold that Section 9799.14, considered in the context of the statutory 

language as a whole, is susceptible to two reasonable constructions, and the statute, 

which sets forth a graduated (three-tier) scheme of registration, encompasses a 

recidivist philosophy. As such, the statute 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. 

 Accordingly, we reverse the order of the Superior Court and remand for 

imposition of a fifteen-year reporting requirement under SORNA. 

 Former Justice Eakin did not participate in the consideration or decision of this 

matter. 

 Chief Justice Saylor and Justices Baer and Donohue join the opinion. 

 Justice Todd files a dissenting opinion. 

 Justice Wecht files a dissenting opinion. 

 

(Lcontinued) 

reasons explained in A.S., we view the SORNA registration question as distinct and 

deem it controlled by the recidivist philosophy animating this tiered scheme.