J-S11043-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT M. GARBER,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1470 WDA 2019

Appeal from the Judgment of Sentence Entered September 25, 2019

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

No(s): CP-43-CR-0002279-2018

BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED JUNE 25, 2020

Robert M. Garber (“Garber”) appeals from the judgment of sentence 

imposed following his conviction of indecent assault.1 We affirm.

In its Opinion, the trial court set forth the relevant factual and 

procedural history as follows:

[Garber] was charged with one count of [i]ndecent 

[a]ssault under 18 Pa.C.S.A. § 3126(a)(1) (relating to nonconsensual indecent contact), a misdemeanor of the second 

degree, with an offense date of August 21, 2018. The case went

to a jury trial and the jury returned a guilty verdict on the one 

count on May 22, 2019.

Appellant was sentenced on September 5, 2019, to, inter 

alia, twenty-four months of probation. ... Appellant then filed a 

timely Notice of Appeal from his sentence. Pursuant to [the trial 

court’s] Order, [Garber] filed a [Pa.R.A.P. 1925(b) Concise] 

Statement of [e]rrors [c]omplained of on [a]ppeal.

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1 See 18 Pa.C.S.A. § 3126(a)(1).
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Trial Court Opinion, 11/22/19, at 1-2 (citations to record, paragraph break 

and some italics omitted).

On appeal, Garber raises the following questions for our review:

1. Should this Court determine [that the Sex Offender and 

Notification Act, 42 Pa.C.S.A. §§ 9799.10-9799.42, 9799.51-

9799.75 (“SORNA II”),2is] unconstitutional and strike the 

requirements thereof as they apply to [] Garber?

2. Should this Court strike the 15[-]year SORNA [II] registration 

requirement imposed upon [] Garber on grounds that it is 

tantamount to a probationary sentence 13 years beyond his 

maximum sentence term?

3. Is the requirement of a 15[-]year registration for an 

[i]ndecent [a]ssault (M-2) charge cruel punishment under Article 

I[,] Section 13 of the Pennsylvania[] Constitution and the 8th

Amendment to the United States Constitution?

4. Does the 15[-]year registration requirement in this case 

violate [] Garber’s rights under Article I[,] Section I of the 

Pennsylvania[] Constitution, which guarantees [] Garber the 

right of protection of his reputation?

Brief for Appellant at 9-10 (footnote added).

In each of Garber’s four claims, he challenges his 15-year registration 

requirement pursuant to SORNA II.

We consider [an a]ppellant’s claims, mindful that lawfully 

enacted statutes are presumptively constitutional. A 

constitutional challenge presents a question of law. Thus, our 

standard of review is de novo, and our scope of review is 

plenary.

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2 SORNA II resulted from several amendments and additions to its 

precursor, SORNA. See 42 Pa.C.S.A. §§ 9799.10-9799.41 (amended by Act 

of Feb. 21 2018, P.L. 27, No. 10 and Act of June 12, 2018, P.L. 1952, No. 

29.
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Commonwealth v. Moore, 222 A.3d 16, 19 (Pa. Super. 2019) (citations 

and brackets omitted).

In his first claim, Garber alleges that “the entire statutory registration 

scheme under SORNA II is unconstitutional.” See Brief for Appellant at 13. 

Garber cites to our holdings in Moore, supra, and Commonwealth v. 

Butler, 173 A.3d 1212 (Pa. Super. 2017), and to Commonwealth v. 

Lacombe, 35 MAP 2018 (Pa. 2018), which was awaiting a decision by our 

Supreme Court when Garber submitted his brief.

In his second claim, Garber alleges that his sentence is illegal, because 

SORNA II’s registration requirement is tantamount to a probationary 

sentence. See Brief for Appellant at 14. Garber cites Commonwealth v. 

Muniz, 164 A.3d 1189 (Pa. 2017), for the proposition that SORNA is 

punitive in nature, and argues that his registration requirement runs 13 

years past his probationary sentence, in excess of the maximum sentence 

allowed for his conviction of indecent assault. Id.

In his third claim, Garber alleges that his 15-year registration 

requirement constitutes cruel and unusual punishment under the 

Pennsylvania and United States Constitutions. See id. at 15-16. Garber 

argues that his registration requirement for indecent assault is excessive 

because indecent assault does not cause injury to the victim, and SORNA II’s 

registration requirements “expose the offender to ‘profound humiliation and 
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community-wide ostracism.’” Id. at 16 (citing Smith v. Doe, 538 U.S. 84, 

115 (2002)).

In his fourth claim, Garber alleges that the 15-year registration 

requirement violates his right to protection of his reputation under Article I, 

Section I of the Pennsylvania Constitution. See Brief for Appellant at 17. 

Garber argues that the 15-year registration requirement is not 

“commensurate with” his crime. Id.

In each of his claims, Garber makes bald allegations that SORNA II is 

unconstitutional, without presenting any legal argument in support of his 

claims. Garber cites to cases where SORNA and SORNA II have been 

challenged, see Brief for Appellant at 13-14 (citing Moore, Butler, 

Lacombe, and Muniz), and cases that broadly discuss an individual’s 

personal freedoms, see Brief for Appellant at 16 (citing Smith v. Doe, 538 

U.S. at 115), 17 (citing Sprague v. Walter, 543 A.2d 1078, 1084 (Pa. 

1988), but fails to discuss how these cases relate to Garber and his claims. 

“The failure to develop an adequate argument in an appellate brief may 

result in waiver of the claim under Pa.R.A.P. 2119. While this Court may 

overlook minor defects or omissions in an appellant’s brief, we will not act as 

his or her appellate counsel.” Commonwealth v. Freeman, 128 A.3d 
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1231, 1249 (Pa. Super. 2015) (citations and quotation marks omitted). 

Accordingly, each of Garber’s claims is waived.

3

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/25/2020

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3 Garber’s counseled appellate brief is particularly scant on legal argument. 

Notably, Garber states that he “wishes to preserve” his claims that SORNA II 

is unconstitutional, in light of the various cases that are pending before our 

Supreme Court. See Brief for Appellant at 13, 14. To the extent that 

Garber was relying on the Pennsylvania Supreme Court’s review of our 

holding in Butler, supra, we note that the court has recently issued its 

opinion, which held that SORNA II’s registration, notification, and counseling

(“RNC”) requirements are constitutional as applied to sexually violent 

predators. See Commonwealth v. Butler, 2020 WL 1466299 at **15-16, 

___ A.3d ___ (Pa. Mar. 26, 2020). Thus, even if Garber specifically 

challenged the constitutionality based upon Butler, it would provide Garber 

no relief. We are unable to discern any other specific bases upon which 

Garber challenges the constitutionality of SORNA II as applied to his case.