J-S01019-21

2021 PA Super 74

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT TIRRELLE DEVANTE CAREY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 206 MDA 2020

Appeal from the Judgment of Sentence Entered January 13, 2020

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

No(s): CP-21-CR-0000691-2019

BEFORE: LAZARUS, J., McCAFFERY, J., and STEVENS, P.J.E.*

OPINION BY McCAFFERY, J.: FILED APRIL 19, 2021

Robert Tirrelle Devante Carey (Appellant) appeals from the judgment of 

sentence entered in the Cumberland County Court of Common Pleas following 

his jury conviction of two counts of possession with intent to deliver controlled 

substances (PWID)1 (cocaine and oxycodone) and related offenses. Appellant 

argues the trial court erred when it denied his motion to suppress based on 

an invalid warrant and the unlawful execution of that warrant. He also insists 

the court’s imposition of a 12-month period of re-entry supervision pursuant 

to 61 Pa.C.S. § 6137.2 is an unconstitutional ex post facto punishment. 

Because we agree the application of Section 6137.2 is unconstitutional as 

applied to Appellant, where he committed the underlying offenses before the 

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30).
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effective date of the statute, we vacate that part of his sentence. In all other 

respects, we affirm.

We glean the following facts from the affidavits of probable cause 

supporting two search warrants executed in this case, as well as the testimony 

presented at the suppression hearing.2 On October 26, 2018, a Carlisle Police 

officer attempted to initiate a traffic stop of a black Chevrolet Impala operated 

by Appellant. Search Warrant & Authorization, 2/13/19, Affidavit of Probable 

Cause at ¶ 2 (Body Warrant). Appellant did not stop, but rather fled the scene

in his car at a high rate of speed. Id. He then pulled into a parking lot and 

fled from the vehicle on foot. Id. During his escape, Appellant “kicked in a 

rear door at 136 W Louther St gaining entry into a residence which he did not 

have permission to be in.” Id. He successfully evaded capture, and a warrant 

was issued for his arrest. Id. Appellant was also wanted for a parole violation 

“with the original charges being related to [felony] firearms possession[.]” Id. 

Appellant’s “lengthy criminal history” includes charges of robbery, carrying a 

firearm without a license, and delivery of narcotics. Id.

On February 12, 2019, the Carlisle Police Department received a tip 

through “Crimewatch” that Appellant was “staying at 1820 Heishman Gardens 

____________________________________________

2 As the trial court notes in its opinion, because “the facts from trial are not at 

issue[,]” the trial transcript was not requested by Appellant. Trial Ct. Op., 

7/21/20, at 3. 
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in North Middleton Township” with Lanajah Hodge,3 and that he was driving a 

“white Nissan SUV.” Body Warrant at ¶ 3. That same day, the Carlisle Police 

Department conducted surveillance of the Heishman Gardens residence at 

approximately 7:30 p.m. Id. Officers “observed a dark colored Honda Civic 

registered to Lanaja[h] Hodge parked in the driveway of 1820 Heishman 

Gardens.” Id. Ms. Hodge’s driver’s license lists the Heishman Gardens 

residence as her address. Id. Carlisle Police Sergeant Joshua Bucher4

returned the next day at about 2:30 p.m., at which time he “observed a white 

. . . Nissan Rogue sitting in the driveway at 1820 Heishman Gardens.” Id. 

Sergeant Bucher then applied for a warrant to search 1820 Heishman Gardens 

for Appellant. The warrant was approved at 3:00 p.m. on February 13th.

At approximately 6:20 a.m. the next morning, February 14, 2019, the 

Cumberland County Special Response Team executed the warrant at 1820 

Heishman Gardens. Search Warrant & Authorization, 2/14/19, Affidavit of 

Probable Cause at ¶ 4 (Search Warrant); N.T., Suppression H’rg, at 13. 

Hampden Township Police Officer Jason Wayne Julseth was the team leader 

for the Special Response Team. See N.T., Suppression H’rg, at 12, 14. Officer 

Julseth testified that the team was “briefed that it was going to be a high risk 

search warrant involving possible drugs and a gun.” Id. at 13. He explained 

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3 Although the Affidavit of Probable Cause spells Hodge’s first name “Lanaja,” 

Ms. Hodge testified at the suppression hearing that her first name is spelled 

“Lanajah.” See N.T. Suppression H’rg, 8/30/19, at 25.

4 Sergeant Bucher is also a detective with the Cumberland County Drug Task 

Force. N.T., Suppression H’rg, at 5.
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that he had members of the team stationed at the front and back of the 

residence, as well a “full coverage around the sides.” Id. at 15. Officer Julseth 

testified the team could not see inside the residence because the windows 

“were draped.” Id. Therefore, they did a “knock-and-announce” where they 

banged on the door, “waited about 10 seconds, and then . . . manually 

breached the door open[.]” Id. Officer Julseth stated the team did not “make 

entry” at that time, but rather “h[e]ld the threshold.” Id. He explained that 

about ten seconds later, Appellant “appeared out of the back” and the officers 

“called him out.” Id. at 16. Officer Julseth stated Appellant was not 

handcuffed until he was “outside the threshold of his residence.” Id. at 17. 

The team then “called out” Hodge as well before entering the residence to 

check for “other persons.” Id. at 20.

Sergeant Bucher testified that, once inside the residence, he “smelled a 

strong odor of burnt marijuana” and noticed several “partially smoked 

marijuana ‘blunts’” in an ash tray in plain view. Search Warrant at ¶ 4. Based 

on his observations, he obtained a second warrant for 1820 Heishman Gardens

to search for additional marijuana. Id. at ¶¶ 6-7. The second warrant was 

executed at approximately 8:40 a.m. Id. at ¶ 7. During the execution of that 

warrant, officers observed “individually packaged baggies of suspected crack 

cocaine, oxycodone and [P]ercocet pills,” as well as additional drug packaging 

materials, and a loaded firearm. Id. Sergeant Bucher applied for, and was 

granted, a third search warrant to seize the additional drugs and firearm. Id.

at ¶ 9.
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Ms. Hodge’s suppression hearing testimony concerning the officers’ 

execution of the body warrant differed from that of Officer Julseth. She 

claimed that she and Appellant were sleeping when she heard “someone 

outside say whoever is in the residence of 1820 Heishman Gardens . . . come 

outside.” N.T., Suppression H’rg, at 26. She did not hear anyone knock on 

the door. Id. at 27. Ms. Hodge testified that “two seconds later,” she and 

Appellant came out of the bedroom and “there were already people inside” 

the house. Id. at 26-27. She stated that the officers “had guns everywhere” 

and immediately arrested Appellant and put her in handcuffs. Id. at 27. 

Appellant was subsequently arrested and charged with two counts each 

of PWID (cocaine and oxycodone) and possession of controlled substances 

(cocaine and oxycodone), and one count each of persons not to possess 

firearms, receiving stolen property, possession of a small amount of 

marijuana, and possession of drug paraphernalia.5 Appellant filed a pre-trial 

omnibus motion seeking suppression of the drugs and weapon recovered 

during the search, as well as dismissal of the firearms charge. The Honorable 

Albert H. Masland conducted a suppression hearing on August 30, 2019. After 

permitting the parties to file briefs, Judge Masland denied the pre-trial motion 

on November 5, 2019. 

The case proceeded to a jury trial before the Honorable Thomas A. 

Placey. On December 11, 2019, the jury returned a verdict of guilty on all the 

____________________________________________

5 See 18 Pa.C.S. 3925(a), 6105; 35 P.S. § 780-113(a)(16), (31), (32). 
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drug charges, and not guilty on the firearms and receiving stolen property 

offenses. On January 13, 2020, the trial court sentenced Appellant to an 

aggregate term of 45 to 90 months’ imprisonment. Because Appellant had a 

state parole violation, with a maximum date of January 17, 2021, the court 

noted that Appellant’s “aggregate sentence” was more than four years. See

N.T., 1/13/20, at 7-8. Thus, the trial court determined it was required to 

impose an additional 12-month period of reentry supervision pursuant to 61 

Pa.C.S. § 6137.2. Id. at 8-9, 12. This timely appeal follows.6

Appellant asserts three issues on appeal:

I. Did the court err when it denied Appellant’s motion to 

suppress when it found that there was a valid search 

warrant to search a home where [Appellant] was found as a 

guest?

II. Did the court err in denying Appellant’s motion to suppress 

when it found that the execution of the warrant was 

procedurally lawful?

III. Is 61 Pa.C.S. § 6137.2 an unlawful statute that imposed an 

illegal twelve month period of re-entry supervision upon 

Appellant?

Appellant’s Brief at 6 (some capitalization omitted). 

Appellant’s first two issues challenge the trial court’s denial of his 

suppression motion. Our standard of review is well-established:

Our standard of review in addressing a challenge to the denial of 

a suppression motion is limited to determining whether the 

suppression court’s factual findings are supported by the record 

____________________________________________

6 Appellant complied with the trial court’s directive to file a concise statement 

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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and whether the legal conclusions drawn from those facts are 

correct. Because the Commonwealth prevailed before the 

suppression court, we may consider only the evidence of the 

Commonwealth and so much of the evidence for the defense as 

remains uncontradicted when read in the context of the record as 

a whole. Where the suppression court’s factual findings are 

supported by the record, we are bound by these findings and may 

reverse only if the court’s legal conclusions are erroneous. The 

suppression court’s legal conclusions are not binding on an 

appellate court, whose duty it is to determine if the suppression 

court properly applied the law to the facts. Thus, the conclusions 

of law of the courts below are subject to our plenary review.

Moreover, appellate courts are limited to reviewing only the 

evidence presented at the suppression hearing when examining a 

ruling on a pre-trial motion to suppress.

Commonwealth v. Harlan, 208 A.3d 497, 499 (Pa. Super. 2019) (citation 

omitted). 

Appellant first contends the body warrant was issued without adequate 

probable cause. He insists the affiant failed to sufficiently corroborate the 

anonymous tip received through Crimewatch. See Appellant’s Brief at 12-13. 

Appellant maintains:

Nothing in the warrant application linked [Appellant] to Ms. 

Hodge. The warrant application did not note whether the plates 

on the Nissan Rogue were linked to [Appellant]. No officer ever 

saw [Appellant] enter or leave the residence. The residence was 

not a known address of [Appellant].

Id. at 13. Thus, he argues the information contained in the probable cause 

affidavit of the body warrant did “not give rise to the level of probable cause 

that is required in order to execute the search warrant.” Id.

When considering the adequacy of a search warrant, we must bear in 

mind the following:
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Before an issuing authority may issue a constitutionally valid 

search warrant, he or she must be furnished with information 

sufficient to persuade a reasonable person that probable cause 

exists to conduct a search. The standard for evaluating a search 

warrant is a “totality of the circumstances” test as set forth in 

Illinois v. Gates, 462 U.S. 213[ ] (1983), and adopted in 

Commonwealth v. Gray, [ ] 503 A.2d 921 ([Pa.] 1985). A 

magistrate is to make a “practical, common sense decision 

whether, given all the circumstances set forth in the affidavit 

before him, including the ‘veracity’ and ‘basis of knowledge’ of 

persons supplying hearsay information, there is a fair probability 

that contraband or evidence of a crime will be found in a particular 

place.” The information offered to establish probable cause must 

be viewed in a common sense, nontechnical manner.

Commonwealth v. Manuel, 194 A.3d 1076, 1081 (Pa. Super. 2018) (some 

citations and footnote omitted). When determining whether a warrant is 

supported by probable cause, the magistrate “may not consider any evidence 

outside of the affidavit.” Commonwealth v. Housman, 986 A.2d 822, 843 

(Pa. 2009), citing Pa.R.Crim.P. 203(B). Moreover: 

The Supreme Court of the United States has instructed “that afterthe-fact scrutiny by courts of the sufficiency of an affidavit should 

not take the form of de novo review.” Indeed, a magistrate’s 

probable cause determination should receive deference from the 

reviewing courts. In keeping with the Fourth Amendment’s strong 

preference for warrants, “courts should not invalidate ... warrants 

by interpreting affidavits in a hyper[-]technical, rather than a 

commonsense, manner.”

Commonwealth v. Leed, 186 A.3d 405, 413 (Pa. 2018), citing Gates, 462 

U.S. at 236. “[I]nformation received from an informant whose reliability is 

not established may be sufficient to create probable cause where there is some 

independent corroboration by police of the informant’s information.” Manuel, 

194 A.3d at 1083 (citations omitted).
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In concluding the body warrant issued herein was supported by probable 

cause, the trial court opined:

Affiant learned by tip that [Appellant] was seen in a white Nissan 

SUV and . . . was identified as the operator. [Appellant] was 

reportedly staying with a Lanaja[h] Hodge at a specific address, 

which the issuing authority would know as being just outside the 

Borough of Carlisle. The same day the tip was received, affiant 

obtained a follow-[up] police statement confirming the tip 

identified person — Lanaja[h] Hodge; her address was confirmed, 

and another officer identified a vehicle registered to [her] that was 

seen at the given address. Less than twenty-four (24) hours later, 

the affiant went to the now verified address and observed a white 

Nissan Rogue parked in the driveway of the residence. Affiant 

obtained a search warrant within a half hour based on cumulative 

collected information. The sum of this information adds up to a 

fair probability that [Appellant] would be found in that particular 

place and residence. [T]his probability was not to a mathematic 

certainly nor was it the most fastidious police work ever done, but 

the totality of the information gave enough verified detail to 

believe in the likelihood that [Appellant] would be found at that 

residence.

If one where to perceive this information from a trained law 

enforcement perspective, it is known that [Appellant] has a drug 

delivery history, and the officer is told via tip that [Appellant] is 

lodging with a specific person at a specific address. The police 

check out that given address and find a car that is registered to 

the specific person named in the tip and at the specific address;

therefore, these parts of the tip are confirmed. Further, the tip 

also identifies the vehicle [Appellant] was last seen driving, a 

white Nissan SUV, and when the police go back to the verified 

specific address they observe a white Nissan Rogue, a small white 

SUV. The totality of these circumstances, observations, and 

verified information leads the affiant to the common sense 

conclusion that there is probable cause to believe that [Appellant] 

is NOW most likely at the verified address based on all the multiple 

confirmations of people, place, and vehicles. This non-hypertechnical interpretation of the affidavit’s conclusion is reasonably 

calculated and sound.

Trial Ct. Op., 7/21/20, at 12-14.
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Upon our review of the record, and in particular, the body warrant’s 

affidavit of probable cause, we agree with the trial court’s conclusion that the 

information contained in the warrant was sufficient to provide probable cause 

that Appellant would be located at 1820 Heishman Gardens. Indeed, the 

probable cause affidavit states Appellant was wanted not only for fleeing police 

in October of 2018, but also for a state parole violation related to a felony 

possession of a firearm. See Body Warrant at ¶ 2. The affidavit also 

summarized Appellant’s “lengthy criminal history[,]” which included firearms 

and drug offenses. Id. Although Appellant’s purported location was based on 

an anonymous tip, that same day, the officers corroborated some of the 

information by confirming that Lanajah Hodge did indeed live at the address 

provided by the tipster, and that a car registered to Hodge was parked in the 

driveway. See id. at ¶ 3. Less than 24 hours later, the affiant observed a 

white Nissan SUV — the same color and type of vehicle the tipster stated 

Appellant was driving — parked in the driveway of 1820 Heishman Gardens. 

This information was sufficient for the magistrate to make a common-sense 

determination that Appellant would be found at that address. See Leed, 186 

A.3d at 413. Thus, no relief is warranted.

Next, Appellant insists the trial court erred when it determined the 

execution of the warrant was “procedurally lawful.” Appellant’s Brief at 15. 

Rather, Appellant argues the officers violated the knock-and-announce rule by 

entering the residence without providing a sufficient amount of time for 

Appellant to surrender. See id. at 17. He maintains the mere 10 seconds the 
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officers waited before breaching the entryway was not sufficient time for 

Appellant and Ms. Hodge to “navigate [the] house at the break of dawn to 

answer the door[.]” Id. at 18. Moreover, Appellant emphasizes that the 

Commonwealth, which bore the burden of proof, “did not provide testimony 

as to the substance of the announcement made to persons in the residence.” 

Id. at 18. 

The knock-and-announce rule “requires that police officers announce 

their identity, purpose and authority and then wait a reasonable amount of 

time for the occupants to respond prior to entering any private premises” to 

execute a search warrant. Commonwealth v. Frederick, 124 A.3d 748, 754 

(Pa. Super. 2015) (citation and footnote omitted). Pennsylvania Rule of 

Criminal Procedure 207 provides:

Rule 207. Manner of Entry Into Premises

(A) A law enforcement officer executing a search warrant 

shall, before entry, give, or make reasonable effort to give, notice 

of the officer’s identity, authority, and purpose to any occupant of 

the premises specified in the warrant, unless exigent 

circumstances require the officer’s immediate forcible entry.

(B) Such officer shall await a response for a reasonable 

period of time after this announcement of identity, authority, and 

purpose, unless exigent circumstances require the officer’s 

immediate forcible entry.

(C) If the officer is not admitted after such reasonable 

period, the officer may forcibly enter the premises and may use 

as much physical force to effect entry therein as is necessary to 

execute the search.

Pa.R.Crim.P. 207(A)-(C).

When considering whether police officers violated Rule 207,
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the critical inquiry remains whether sufficient time elapsed in 

which the police could form “a reasonable belief that the occupants 

of the premises did not intend to voluntarily or peaceably 

surrender the premises.” In reviewing this question of whether 

the police waited a reasonable period of time before forcibly 

entering the premises, we utilize an objective standard as to the 

reasonable belief of the police. Accordingly, in evaluating an 

officer’s compliance with a knock-and-announce rule we look only 

to the facts and circumstances with which the officers are faced at 

the time they make their decisions and act on them.

Commonwealth v. Walker, 874 A.2d 667, 673 (Pa. Super. 2005) (citations 

omitted). In the absence of exigent circumstances, the Pennsylvania Supreme 

Court has held that a “five to ten-second delay is not a reasonable time for an 

occupant to respond to police officers’ knocking and announcing their 

purpose.” Commonwealth v. Means, 614 A.2d 220, 223 (Pa. 1992); see 

also Commonwealth v. DeMichel, 277 A.2d 159, 164 (Pa. 1971) (holding 

the officers’ actions in breaking down the defendant’s front door “five to fifteen 

seconds after announcing their presence and purpose” was unreasonable) (per 

Roberts, J., with one Justice joining and one Justice concurring in the result).

In finding the officers did not violate the knock-and-announce rule, the 

trial court opined:

Law enforcement herein complied with the spirit and intent of 

[Rule 207], although [Appellant] takes issue with the ten seconds 

before the door was breached. It is unknown what, if any, amount 

of damage was done from the door breach, but damage is not the 

primary focus of the Rule; safety of the police and occupants is 

the most critical purpose. Safety was achieved though the 

systematic process employed — that did not involve guns-ablazing entry — indeed, no entry was made into the residence until 

after completion of “knock-and-announce,” followed by “breach,” 

that was ultimately followed by the “call-out” procedure. The 

warrant execution herein promoted peaceable entry by affording 

fair warning and safeguarding legitimate privacy expectations to 
J-S01019-21

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the degree possible. The efficacy of this “call-out” procedure was 

ably demonstrated in this case, which does not give rise of 

suppression of evidence.

Trial Ct. Op. 14-15 (citation omitted).

Upon our review of the record, we agree. Officer Julseth testified at the 

suppression hearing that the windows to the residence were “draped” such

that the officers “couldn’t see inside anywhere.” N.T., Suppression H’rg, at 

15. He explained they did a “knock-and announce” by banging on the door, 

and waiting “about 10 seconds” before “manually breach[ing] the door open” 

so that they had “a window . . . to look inside.” Id. See also id. at 23 (Officer 

Julseth testifying under cross-examination, “We didn’t enter after ten seconds. 

We knocked-and-announced, and then we broke the door open in ten seconds 

about.”). Officer Julseth emphasized that the officers remained “outside the 

threshold” of the residence, and “call[ed]-out” Appellant when he appeared. 

Id. at 15-16. He explained they waited ten seconds “based on the fact that 

[they] had no vantage point to look inside.” Id. at 21.

While the ten second delay was brief, we must evaluate the officers’ 

actions based upon the “facts and circumstances [they] faced at the time they 

[made] their decisions.” See Walker, 874 A.2d at 673. Although the October 

2018 incident involved Appellant fleeing and eluding police officers, the 

probable cause affidavit for the body warrant also stated Appellant was 

“wanted by the State Board of Probation and Parole for a parole violation with 

the original charges being related to firearms possession (felony).” Body 

Warrant at ¶ 2. Further, it indicated Appellant had a “lengthy criminal history 
J-S01019-21

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[which] include[d] charges of robbery, resisting arrest, fleeing and eluding, 

firearms not to be carried without a license and delivery of a controlled 

substance.” Id. Officer Julseth testified that his team was “briefed that it was 

going to be a high risk search warrant involving possible drugs and a gun.” 

N.T., Suppression Hr’g at 13. Sergeant Bucher explained:

[T]he search warrant was not for drugs or guns. The reason the 

special response team was used was based off the criminal history 

of [Appellant]. There were firearm-related charges in the past, as 

well as felony drug charges in the past. At any time that there 

are firearms in a person’s criminal history, we typically use a 

special response team just because there is [a] fair probability 

that there may be a firearm again in this case.

Id. at 24. Thus, based on all the information available to the officers at the 

time of the execution of the warrant, we agree with the conclusion of the 

suppression court that the officers “waited a reasonable period before the door 

was broken down.” Memorandum Op. & Order, 11/5/19, at 2; Trial Ct. Op. at 

14-15.

To the extent Appellant criticizes the Commonwealth for failing “to 

present any evidence as to what was announced when the police were 

executing the [body] warrant[,]”7 we note the suppression court opined it was 

“satisfied that [the officers’] presence was properly announced[.]” 

Memorandum Op. & Order at 1-2. Although Officer Julseth could not recall 

which officer announced their presence, he did testify that they “knocked-andannounced” before breaching the residence. See N.T., Suppression H’rg, at 

____________________________________________

7 See Appellant’s Brief at 18 (footnote omitted).
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15, 23. Appellant provides no authority mandating the officers recall the exact 

words spoken when they announced their presence and purpose. See 

Appellant’s Brief at 18. Accordingly, we detect no basis to reverse the trial 

court’s determination that the officers complied with the knock-and-announce 

rule before breaching the residence where Appellant was staying.8

In his final issue, Appellant insists the imposition of a 12-month period 

of reentry supervision, pursuant to 61 Pa.C.S. § 6137.2, is an unconstitutional 

ex post facto punishment as applied to him. We agree. 

When considering a challenge to the constitutionality of a statute, we 

are presented with “a pure question of law, for which our standard of review 

is de novo and our scope of review is plenary.” Commonwealth v. Brown, 

26 A.3d 485, 493 (Pa. Super. 2011) (citation omitted).

“As a threshold matter, a statute is presumed to be constitutional 

and will only be invalidated as unconstitutional if it clearly, 

palpably, and plainly violates constitutional rights.” Further, a 

____________________________________________

8

In his brief, Appellant also challenges the officers’ protective sweep of the 

residence, which led to the observation of marijuana blunts in plain view, and 

the subsequent search warrants. See Appellant’s Brief at 19-22. However, 

he failed to raise this issue in either his suppression motion or before the court 

during the suppression hearing. See Appellant’s Pretrial Omnibus Motion, 

7/15/19, at 2-3 (unpaginated); N.T., Suppression H’rg, at 33-37 (defense 

counsel’s argument). Thus, it is waived for our review. See Commonwealth 

v. Banks, 165 A.3d 976, 980-81 (Pa. Super. 2017) (holding trial court abused 

discretion in suppressing evidence based on grounds not asserted in 

defendant’s motion to suppress); Pa.R.Crim.P. 581(D) (suppression motion 

“shall state specifically and with particularity the evidence sought to be 

suppressed, the grounds for suppression, and the facts and events in support 

thereof.”).
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defendant may contest the constitutionality of a statute on its face 

or as-applied.

. . . An as-applied attack . . . does not contend that a law is 

unconstitutional as written but that its application to a 

particular person under particular circumstances deprived 

that person of a constitutional right. . . .

Id. (citations omitted).

Article I, Section 17 of the Pennsylvania Constitution prohibits the 

enactment of any ex post facto law. See Pa. Const. art. I, § 17. A criminal 

law is deemed ex post facto if “two critical elements” are met: “it must be 

retrospective, that is, it must apply to events occurring before its enactment, 

and it must disadvantage the offender affected by it.” Commonwealth v. 

Muniz, 164 A.3d 1189, 1195-96 (Pa. 2017) (citation omitted).

9

The statute at issue, 61 Pa.C.S. § 6137.2, was enacted on December 

18, 2019. It is included under the provisions concerning the parole power of 

the Pennsylvania Parole Board. See 61 Pa.C.S. § 6137. The statute provides 

as follows:

§ 6137.2. Reentry supervision

(a) General rule.—This section applies to persons 

committed to the department with an aggregate minimum 

sentence of total confinement under 42 Pa.C.S. § 9756(b) 

(relating to sentence of total confinement) of 4 years or more.

Regardless of the sentence imposed, this section does not apply 

to persons sentenced to death, life imprisonment, persons 

____________________________________________

9 Although Muniz was a plurality decision, a majority of the justices agreed 

the registration requirements of the then-applicable sexual offender 

registration statute violated Pennsylvania’s ex post facto clause. See Muniz, 

164 A.3d at 1224 (Wecht, J. Concurring Opinion, joined by Todd, J., agreeing 

Pennsylvania’s sex offender registration statute “violates Article I, Section 17 

of the Pennsylvania Constitution”).
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otherwise ineligible for parole or persons subject to 42 Pa.C.S. § 

9718.5 (relating to mandatory period of probation for certain 

sexual offenders).

(b) Reentry supervision.—Any person under subsection 

(a) shall be sentenced to a period of reentry supervision of 

12 months consecutive to and in addition to any other 

lawful sentence issued by the court.

(c) Parole granted.—Persons who have been granted any 

period of parole by the parole board during the same period of 

incarceration shall be deemed to have served the requirements of 

this section.

(d) Supervision.—A person released to reentry supervision 

shall be considered to be released on parole.

(e) Imposition.—The court shall impose reentry 

supervision in addition to the maximum sentence 

permitted for the offense for which the defendant was 

convicted.

(f) Applicability.—This section shall only apply to persons 

sentenced after the effective date of this section.

61 Pa.C.S. § 6137.2 (emphases added).

The statute requires a trial court to impose a mandatory 12-month 

period of reentry supervision “in addition to” any aggregate sentence of four 

or more years’ imprisonment. See 61 Pa.C.S. § 6137.2(e). Furthermore, it 

applies to any defendant “sentenced after the effective date.” 61 Pa.C.S. § 

6137.2(f). As the trial court observed in its opinion, “[c]learly, this law 

changes the punishment, and inflicts a greater punishment, than the law 

annexed to the crime, when it was committed.” Trial Ct. Op. at 15 (footnote 

omitted). Indeed, the Commonwealth concurs that “the application of an 

additional punishment it the form of a required supervisory period . . . is an 

ex post facto violation.” See Commonwealth’s Brief at 27. 
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We agree. Here, Appellant was sentenced for acts he committed in 

February of 2019. The court’s imposition of a 12-month period of reentry 

supervision based upon Section 6137.2 constitutes an additional punishment 

for acts he committed before the December 2019 enactment of the statute. 

Thus, as applied to Appellant, the sentencing provision constitutes an 

unconstitutional ex post facto punishment. Accordingly, we vacate the

provision of Appellant’s sentence imposing a 12-month period of reentry 

supervision. In all other respects, we affirm.10

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

relinquished. 

Judge Lazarus joins the Opinion.

President Judge Emeritus Stevens Concurs in the Result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/19/2021

____________________________________________

10 Because our ruling does not disturb the trial court’s sentencing scheme, we 

need not remand for resentencing. See Commonwealth v. Thur, 906 A.2d 

552, 570 (Pa. Super. 2006).