J-S19028-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BARRETT TUNSIL

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 942 EDA 2019

Appeal from the PCRA Order Entered February 26, 2019

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

No(s): CP-51-CR-0008448-2013

BEFORE: BOWES, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY McCAFFERY, J.: FILED: FEBRUARY 26, 2021

Barrett Tunsil (Appellant) appeals pro se from the order entered in the 

Philadelphia County Court of Common Pleas, denying his timely first Post 

Conviction Relief Act1 (PCRA) petition. After careful review, we conclude 

Appellant’s issues are waived for failure to develop meaningful argument with 

citation to or discussion of legal authority. Thus, we affirm the order. We also 

remand for the PCRA court to notify Appellant of his registration requirements 

____________________________________________

1 42 Pa.C.S. §§ 9541-9546. Appellant purported to appeal from the “March 

15, 2019,” order denying his PCRA petition. However, the underlying order 

was filed on February 26, 2019. We have amended the caption accordingly.
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under the Pennsylvania Sex Offender Registration and Notification Act2

(SORNA).

This Court previously summarized the trial evidence in this matter as 

follows: when the victim was eight years old, she lived with her mother, sister, 

Appellant — whom she referred to as her stepdad — and Appellant’s daughter. 

From approximately 2009 to 2010,3 Appellant sexually abused the victim

by pulling her clothes down[,] inserting his finger into her vagina

and sucking on her breast. [Appellant] threatened to sell [the 

victim] to drug dealers or feed her to the rats if she told anyone. 

[The victim] estimated that she was sexually assaulted more than 

five (5) times between the age of eight (8) and nine (9) while 

residing in [Appellant’s] home.

[Appellant also] punish[ed] [the victim] by pulling down her 

pants and spanking her with his bare hand. He would lock her in 

the basement in the dark prompting her to scream and kick on 

the door because she was so frightened. It wasn’t until [the 

victim] was removed from the home and placed with a foster 

family that she was comfortable enough to reveal the depravity 

she had endured.

[Appellant] testified and denied ever touching or abusing [the

victim].

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2 42 Pa.C.S. §§ 9799.10 to 9799.75.

3 The victim was born in 2001, and the abuse occurred when she was eight to 

nine years old. See N.T. Trial, 10/2/14, at 5, 22. See also Criminal 

Complaint, 6/19/12, at 1 (alleging date of offense as January 1, 2011).
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Commonwealth v. Tunsil, 1990 EDA 2016 (unpub. memo. at 2) (Pa. Super. 

Dec. 8, 2017) (citation omitted) (direct appeal), appeal denied, 8 EAL 2018 

(Pa. May 21, 2018).

Following a jury trial, Appellant was found guilty, on October 6, 2014,

of aggravated indecent assault of a child, indecent assault of a person less 

than 13, endangering the welfare of a child (EWOC), corruption of minors, and 

unlawful contact with a minor.

4

 On April 25, 2016, the trial court found 

Appellant was a sexually violent predator (SVP) under SORNA. See Tunsil, 

1990 EDA 2016 (unpub. memo. at 30-31). On that same day, the court also 

sentenced Appellant to an aggregate term of 25 to 54 years’ imprisonment.5 

Id. at 31.

Appellant took a direct appeal, and, on December 8, 2017, this Court 

affirmed his convictions and sentences. However, this Court reversed the trial 

court’s finding that Appellant was an SVP, pursuant to the then-recent 

Superior Court decision in Commonwealth v. Butler, 173 A.3d 1212 (Pa. 

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4 18 Pa.C.S. § 3125(b), 3126(a)(7), 4304(a)(1), 6301(a)(1)(i), 6318(a)(1).

5 Specifically, the trial court imposed: (1) consecutive terms of nine to 20 

years’ imprisonment for aggravated indecent assault and unlawful contact

with a minor; (2) a consecutive term of 3.5 to seven years’ imprisonment for 

EWOC; (3) a consecutive term of 2.5 to five years’ imprisonment for 

corruption of minors; and (4) a consecutive term of one to two years’

imprisonment for indecent assault.
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Super. 2017) (Butler I), rev’d, 226 A.3d 972 (Pa. 2020) (Butler II).

6

 This 

Court thus remanded for the trial court to issue appropriate notice under 42 

Pa.C.S. § 9799.23 (“Court notification and classification requirements”) of 

Appellant’s SORNA registration requirements. Appellant sought allowance of 

appeal with our Supreme Court, which was denied on May 21, 2018. 

Meanwhile, on December 21, 2017, the trial court conducted a hearing

and vacated Appellant’s “SVP designation and life registration.” PCRA Ct. Op., 

8/29/19, at 1; N.T., 12/21/17, at 11-12. The parties agreed no further 

registration requirements applied to Appellant because of “recent case law”

prohibiting “retroactive application.”

7

 N.T., 12/21/17, at 10-12. The court 

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6

In Butler I, this Court concluded: “[S]ection 9799.24(e)(3) of SORNA 

violates the federal and state constitutions because it increases the criminal 

penalty to which a defendant is exposed without the chosen fact-finder making 

the necessary factual findings beyond a reasonable doubt.” Butler I, 173 

A.3d at 1218. See 42 Pa.C.S. § 9799.24(e)(3) (“At [an SVP hearing], the 

court shall determine whether the Commonwealth has proved by clear and 

convincing evidence that the individual is a sexually violent predator.”).

In a decision issued after Appellant’s PCRA petition in this case was filed, 

our Supreme Court reversed this Court’s decision. The Court held the 

registration and notification provisions applicable to SVPs “do not constitute 

criminal punishment and therefore the procedure for designating individuals 

as SVPs under Section 9799.24(e)(3) is not subject to the requirements of 

Apprendi and Alleyne and remains constitutionally permissible.” Butler II, 

226 A.3d at 976. See Alleyne v. United States, 570 U.S. 99 (2013); 

Apprendi v. New Jersey, 530 U.S. 466 (2000).

7 Although no particular decisional authority was cited, we surmise the parties 

may have been referring to Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 

2017) (plurality) (SORNA requirements have punitive effect and retroactive 

application constitutes ex post facto violation) (discussed infra).
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thus did not advise Appellant of any further registration requirements. See 

id. at 11-12.

On July 23, 2018, Appellant filed a timely, pro se first PCRA petition.

8

 

He raised a litany of broad or vague challenges to trial evidentiary rulings, the 

alleged denial of a fair and impartial trial, and the alleged collusion between 

the trial court, prosecutor, and his trial defense attorney to “orchestrate [his] 

conviction/sentence.” Appellant’s Motion for Post Conviction Collateral Relief, 

7/23/18, at 3-4. The petition also averred trial counsel “frequently failed to 

adequately represent [Appellant] professionally, legally, morally.” Id. at 5.

The PCRA court appointed counsel to represent Appellant; that attorney, 

however, was permitted to withdraw due to his acceptance of a new law 

position. James Marsh, Esquire, was subsequently appointed to represent 

Appellant. He filed a Turner/Finley9 “no-merit” letter and petition to 

withdraw on December 18, 2018. On the same day, the PCRA court gave 

Pa.R.Crim.P. 907 notice of intent to dismiss the PCRA petition without a 

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8 As stated above, the Pennsylvania Supreme Court denied Appellant’s petition 

for allowance of appeal on May 21, 2018. For PCRA purposes, his judgment 

of sentence became final 90 days thereafter, on Monday, August 20, 2018, 

when the period for seeking certiorari with the United States Supreme Court 

expired. See 42 Pa.C.S. § 9545(b)(3); Sup. Ct. R. 13. Appellant then 

generally had one year, or until August 20, 2019, to file a PCRA petition. See

42 Pa.C.S. § 9545(b)(1).

9 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. 

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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hearing. On February 26, 2019, the court issued the underlying order denying 

Appellant’s PCRA petition, and permitting Attorney Marsh to withdraw.

Appellant filed a timely pro se notice of appeal on March 15, 2019. On 

May 2, 2019, the PCRA court ordered Appellant to file a Pa.R.A.P. 1925(b) 

statement within 21 days. The order properly directed Appellant to both file 

a statement of record and serve a copy on the court, and stated “[a]ny issue 

not properly included in a timely filed and properly served 1925(b) Statement 

shall be deemed waived.” Order, 5/2/19. See Pa.R.A.P. 1925(b)(1), (3)(iv), 

(4)(vii); Commonwealth v. Chester, 163 A.3d 470, 472 (Pa. Super. 2017) 

(“[A]n appellant’s failure to comply with a trial court’s Rule 1925(b) Order

results in a waiver of all issues on appeal.”). The corresponding docket entry 

for the court’s order, however, did not identify on whom the order was served, 

nor the manner and date of service, as required by Pa.R.Crim.P. 114. See 

Pa.R.Crim.P. 114(C)(2)(c) (“The docket entries shall contain . . . the date of 

service of the order or court notice.”).

The PCRA court’s opinion states Appellant “filed” a Rule 1925(b) 

statement on May 22, 2019. PCRA Ct. Op. at 2. The trial docket, however, 

does not include any entry for such a filing, and upon informal inquiry by this 

Court, the trial court clerk confirmed it did not have any Rule 1925(b) 

statement from Appellant. Nevertheless, the PCRA court has provided a copy 

of the statement that it received; the face of the statement bears the stamp, 
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“Received in Chambers, May 22, 2019, Hon. Gwendolyn Bright.” Appellant’s 

Concise Statement of the Errors: Cover” (all-capitalization removed).

After careful review of the record before us, we decline to find 

Appellant’s issues waived for failure to file a Rule 1925(b) statement with the 

trial court clerk of courts. See Chester, 163 A.3d at 472 (declining to find 

waiver where the trial docket failed to indicate the date of service of the Rule 

1925(b) order, in violation of Pa.R.Crim.P. 114(C)(2)). 

Nevertheless, we conclude Appellant’s issues are waived for failure to 

develop them or cite the record or any legal authority. See Commonwealth’s 

Brief at 7 (arguing same). By way of background, we note that three days 

prior to trial, the trial court granted Appellant’s request to proceed pro se, and 

directed that trial counsel serve as back-up counsel at trial. N.T., 9/29/14, at 

19-20. However, trial counsel conducted the examination of witnesses and 

gave the closing argument.10

Appellant’s pro se, handwritten brief spans six pages and, like his PCRA 

petition, presents a wide-ranging list of broad or vague claims. For example, 

Appellant avers the following: (1) he never received a subpoena nor a trial 

date, and instead, on the day of trial, he was simply “suddenly awaken[ed] in 

the prison” and told “to ‘fill the bus;’” (2) “to ‘hide and cover up’ the egregious 

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10 The opening arguments are not included in the trial transcripts transmitted 

to this Court.
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and criminal behaviors/conduct by [the trial court] and other perpetrators in 

their attempts to deny [Appellant] a fair trial, [the trial court] ordered . . . the

original trial transcripts to be [voided] and a[n] incorrect/false 2nd transcript 

[be] produced;” (3) trial counsel refused his telephone calls for more than 20 

months, and “‘refused’ to investigate-interview-check records-subpoena 

witnesses;” (4) “in (approxl.) May 2012[, Appellant] was ‘illegally’ declared 

‘mentally incompetent’ to stand trial;” and (5) the trial court, prosecutor, trial 

counsel, and county jail administrators “produced and manufactured 

documents/medical records.” Appellant’s Brief at 1-3. Appellant does not 

discuss nor cite any legal authority, and to the extent his brief raises claims 

of trial counsel’s ineffectiveness, he does not present any argument his 

underlying claim has arguable merit, there was no reasonable basis for trial 

counsel’s actions, or he suffered prejudice. See Commonwealth v. Treiber, 

121 A.3d 435, 445 (Pa. 2015) (elements of ineffective assistance of counsel 

claim).

We conclude Appellant’s failure to develop a meaningful argument with 

citation to relevant, legal authority on any claim waives them on appeal. See 

Commonwealth v. Martz, 232 A.3d 801, 811 (Pa. Super. 2020). This Court 

has stated:

[Pennsylvania Rule of Appellate Procedure 2119] state[s]

unequivocally that each question an appellant raises is to be 

supported by discussion and analysis of pertinent authority. 

Appellate arguments which fail to adhere to these rules may be 

considered waived, and arguments which are not appropriately 

developed are waived. Arguments not appropriately developed 
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include those where the party has failed to cite any authority in 

support of a contention. This Court will not act as counsel and will 

not develop arguments on behalf of an appellant. [M]ere issue 

spotting without analysis or legal citation to support an assertion 

precludes our appellate review of [a] matter.

Id. (citation omitted). Accordingly, we affirm the order denying Appellant’s 

PCRA petition.

At this juncture, we sua sponte address Appellant’s SORNA registration 

requirements. As stated above, in this Court’s December 8, 2017, direct 

appeal memorandum, we reversed Appellant’s SVP designation. Tunsil, 1990 

EDA 2016 at 30-31. On remand, the trial court conducted a hearing on 

December 21, 2017, at which the parties agreed that pursuant to unspecified 

“recent case law,” the retroactive application of “Megan’s Law II” was 

unconstitutional. See N.T., 12/21/17, at 10-12. We note that six months 

earlier, the Pennsylvania Supreme Court issued a decision in Muniz, holding 

the retroactive application of SORNA violated the ex post factor clauses of the 

federal and Pennsylvania Constitutions. See Muniz, 164 A.3d at 1193

(plurality).

Since Appellant’s December 21, 2017, SORNA hearing, however, our 

legislature has amended SORNA:

In response to Muniz and Butler I, the General Assembly enacted 

Act 10 . . . Act 10 split SORNA, which was previously designated 

in the Sentencing Code as Subchapter H into two subchapters. 

Revised Subchapter H[11] applies to crimes committed on or after 

____________________________________________

11 42 Pa.C.S. §§ 9799.10 to 9799.42.
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December 20, 2012, whereas Subchapter I[12] applies to 

crimes committed after April 22, 1996, but before 

December 20, 2012. In essence, Revised Subchapter H retained 

many of the provisions of SORNA, while Subchapter I imposed

arguably less onerous requirements on those who committed 

offenses prior to December 20, 2012, in an attempt to address 

this Court’s conclusion in Muniz that application of the original 

provisions of SORNA to these offenders constituted an ex post 

facto violation.

Commonwealth v. Torsilieri, 232 A.3d 567, 580-81 (Pa. 2020) (emphases 

added and footnote omitted).

Based on the fact Appellant committed the underlying offenses in 

approximately 2009 and 2010 — before December 20, 2012 — he is subject 

to Subchapter I. See 42 Pa.C.S. § 9799.54(a) (“The following individuals 

shall register . . . .”), (b) (“Neither failure on the part of the Pennsylvania 

State Police to send nor failure of an individual to receive notice or information 

under this paragraph shall relieve the individual of the requirements of this 

subchapter.”); Commonwealth v. Lacombe, 234 A.3d 602, 626-27 (Pa. 

2020) (Subchapter I does not constitute criminal punishment and ex post 

facto challenges are meritless). Accordingly, upon remand of the record, the 

PCRA court shall notify Appellant of his registration requirements.

Order affirmed. Case remanded with instructions. Jurisdiction 

relinquished.

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12 42 Pa.C.S. §§ 9799.51 to 9799.75.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/26/21