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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

HAKEEM BRYANT, : No. 2867 EDA 2017

:

 Appellant :

Appeal from the Judgment of Sentence, August 30, 2017,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0005374-2015

BEFORE: DUBOW, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 19, 2018

Hakeem Bryant appeals from the August 30, 2017 judgment of 

sentence entered by the Court of Common Pleas of Philadelphia County 

following his conviction of unlawful contact with a minor, statutory sexual 

assault, sexual assault, endangering the welfare of a child, corruption of 

minors, indecent exposure, indecent assault, rape of a child, and involuntary 

deviate sexual intercourse.1 We affirm appellant’s conviction, vacate the 

determination of sexually violent predator (“SVP”), and remand to the trial 

court to determine whether any registration requirements exist.

 

1 18 Pa.C.S.A. §§ 6318(a)(1), 3211.1(b), 3124.1, 4304(a)(1), 

6301(a)(1)(ii), 3127(a), 3126(a)(7), 3121(c), and 3123(b), respectively. 

The trial court sentenced appellant to an aggregate sentence of 9-18 years’

imprisonment to be followed by 7 years’ probation. Appellant does not 

challenge the discretionary aspects of his sentence.
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The trial court summarized the procedural history of this case as 

follows:

On May 7, 2015 [a]ppellant was arrested and 

charged with Rape of a Child and related offenses. 

On January 10, 2017, following a waiver trial before 

[the trial court], appellant was found guilty of these 

charges. On August 30, 2017 by stipulation of 

counsel for the Commonwealth and [a]ppellant, [the 

trial court] determined that [a]ppellant was a 

Sexualy Viol[ent] Predator []. Thereafter, 

[a]ppellant was sentenced to a lengthy term of 

incarceration followed by several years of state 

supervised sex offender probation. Appellant was 

designated a Tier III lifetime registrant.

Trial court opinion, 4/17/18 at 1.

Appellant filed a pro se notice of appeal to this court on September 5, 

2017, despite the fact that he was still represented by counsel. On 

September 6, 2017, appellant’s counsel filed a motion to reconsider 

sentence; and on September 8, 2017, appellant’s counsel filed a motion for 

judgment of acquittal. The trial court denied appellant’s motion to 

reconsider sentence on October 27, 2017.

On December 4, 2017, this court entered a rule to show cause order, 

directing appellant to show cause why his appeal should not be considered 

interlocutory because the trial court had not entered an order pertaining to 

the counseled post-sentence motions filed on September 8, 2017. 

Additionally, appellant filed his notice of appeal prior to the expiration of the 

120-day period in which the trial court may, by rule, review a post-sentence 

motion. Prior to the expiration of the 10-day period required by this court 
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for a response to the rule, on December 6, 2017, the trial court issued an 

order directing appellant to file a concise statement of errors complained of 

on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant’s trial counsel filed a motion to withdraw, which the trial 

court granted on December 20, 2017. The trial court continued the case 

until appellate counsel was appointed to represent appellant on 

December 21, 2017. The trial court issued a “corrected” Rule 1925(b) order 

on January 16, 2018, following the appointment of appellate counsel for 

appellant. On January 29, 2018, appellant’s counsel responded to this 

court’s rule to show cause order stating that appellant’s appeal was

interlocutory and should be quashed so the trial court could rule on 

appellant’s September 8, 2017 post-sentence motion. That same day, 

appellant’s counsel requested that the trial court rescind its January 16, 

2018 Rule 1925(b) order based on his response to this court’s rule to show 

cause order and because appellant’s counsel had yet to receive the 

sentencing hearing transcript. On February 15, 2018, the trial court issued a 

third Rule 1925(b) order, with which appellant timely complied on March 12, 

2018. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on 

April 17, 2018. 

On April 20, 2018, this court discharged the rule to show cause order, 

referring the issue of appealability to this panel. Accordingly, we shall first 

determine whether appellant’s appeal should be quashed as interlocutory.
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First, appellant’s appeal should not be quashed because the 

September 8, 2017 post-sentence motion was not filed with leave of the trial 

court. The Pennsylvania Rules of Criminal Procedure mandate that all 

requests for relief be “consolidated in the post-sentence motion.” 

Pa.R.Crim.P. 720(B)(1)(a). A defendant may file a supplemental 

post-sentence motion at the judge’s discretion. Pa.R.Crim.P. 720(B)(1)(b). 

There is nothing of record to indicate that the trial court granted appellant 

leave to file a supplemental post-sentence motion, and there is no order of 

record disposing of appellant’s September 8, 2017 post-sentence motion for 

judgment of acquittal. Second, the September 8, 2017 post-sentence 

motion raises claims of ineffective assistance of counsel. Such claims are 

generally not considered on direct appeal and are reserved for collateral 

relief. Commonwealth v. Blye, 33 A.3d 9, 11 (Pa.Super. 2011). 

Therefore, appellant’s appeal should not be quashed as interlocutory.

We shall now address the effect of appellant’s pro se notice of appeal. 

In Commonwealth v. Cooper, 27 A.3d 994 (Pa. 2011), the defendant filed 

a “snap” pro se notice of appeal, despite being represented by counsel. Id.

at 995. Thereafter, the defendant’s counsel filed a timely post-sentence 

motion which was ultimately denied by the trial court. Id. Our supreme 

court held that the pro se notice of appeal should be treated as a premature 

appeal as if it had been filed after denial of the post-sentence motion in 

accordance with Pa.R.A.P. 905(a)(5).” Id.
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In light of our supreme court’s holding in Cooper, we find that we 

have all the necessary material before us to reach a decision in appellant’s 

appeal on the merits and need not quash appellant’s appeal, despite 

appellant’s premature filing of a notice of appeal. Appellant’s sole issue on 

appeal was raised in his Rule 1925(b) statement, and the trial court 

discusses the issue in its Rule 1925(a) opinion. Additionally, both parties 

have briefed the issue before us. Appellant’s sole issue on appeal is as 

follows: “must appellant’s designation as an SVP be vacated because it 

constitutes an illegal and unconstitutional sentence?” (Appellant’s brief at 3 

(full capitalization omitted).)

Preliminarily, we note that appellant’s challenge to the legality of his

sentence is non-waivable. Commonwealth v. Butler, 173 A.3d 1212, 

1214 (Pa.Super. 2017) (citations omitted). In this appeal, appellant 

contends that pursuant to Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 

2017) (OAJC), cert. denied sub nom. Pennsylvania v. Muniz, 138 S.Ct. 

925 (2018), application of the registration requirements in SORNA2

constitute additional criminal punishment, and that the factors governing 

whether an individual is deemed an SVP must be determined by a fact-finder 

beyond a reasonable doubt. (Appellant’s brief at 9.)

 

2 Sexual Offender Registration and Notification Act, 42 Pa.C.S.A. 

§§ 9799.10-9799.41.
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Prior to appellant’s sentencing, our supreme court held that SORNA’s

registration requirements constitute criminal punishment, as opposed to a 

mere civil penalty. Muniz, 164 A.3d at 1192. Thereafter, in Butler, this 

court concluded that because Muniz held that SORNA’s registration 

requirements are punitive and an SVP designation increases the registration 

period, trial courts cannot apply SORNA’s increased registration 

requirements to SVPs because SORNA does not require a fact-finder to 

determine, beyond a reasonable doubt, that the defendant is an SVP. 

Butler, 173 A.3d at 1217-1218, citing Alleyne v. United States, 570 U.S. 

99 (2013). We further found 42 Pa.C.S.A. § 9799.24(e)(3) unconstitutional

and directed trial courts to apply only the applicable tier-based registration 

period, as those periods apply based on the conviction itself, and not due to 

any additional fact not found, under SORNA’s procedures, by the fact-finder. 

Butler 173 A.3d at 1218. As such, we reversed the order designating the 

defendant as an SVP and remanded to the trial court for the sole purpose of 

issuing appropriate notice of the defendant’s tier-based registration period. 

Id.

In the case before us, the trial court accepted a stipulation from 

appellant and the Commonwealth that appellant was an SVP. A stipulation 

from the defense of facts that must be found beyond a reasonable doubt by 

the fact-finder does not provide a remedy to the unconstitutionality of 

42 Pa.C.S.A. § 9799.24(e)(3). Indeed, as noted above, a trial court may 
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only apply a tier-based registration period based on a defendant’s 

conviction. See Butler, 173 A.3d at 1218. Despite the stipulation that 

appellant is an SVP, the trial court did not have a constitutional method by 

which it could adjudicate appellant as such.

Accordingly, in light of Muniz and Butler, we find that appellant’s 

SVP designation constitutes an illegal sentence. Therefore, we affirm 

appellant’s conviction, vacate that portion of appellant’s sentence finding 

appellant to be an SVP, and remand to the trial court to determine whether 

any registration requirements exist.

Judgment of sentence affirmed in part and vacated in part. Case 

remanded with instructions. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/19/18