J-S58037- 14

_________________________ *Retired Senior Judge assigned to the Superior Court. NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. JEFFREY R. RITENOUR Appellant No. 581 WDA 2014

Appeal from the Judgment of Sentence April 1 , 2014 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP

- 26

- CR -0000209-2013

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J .* MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 6, 2014 Appellant, Jeffrey R. Ritenour, appeals from the ju dgment of sentence entered in the Fayette County Court of Common Pleas, following his jury trial convictions for statutory sexual assault, aggravated inde cent assault, corruption of minors, and simple assault. 1 We affirm. The relevant facts and procedural history of this appea l are as follows. The minor victim and Appellant are distant cousins who h ave known each other for a long time. The victim testified that on May 24, 2012, she and Appellant went on a walk together. While they were walking, Appellant asked the victim to have sex with him; and the victim refused. Appellant

____________________________________________ 1 18 Pa.C.S.A. §§ 3122.1(b), 3125(a)(8), 6301(a)(1)( ii), and 2701(a)(3), respectively.J-S58037- 14

- 2 -

then pushed the victim to the ground, climbed on top o f her, and removed her shorts. Appellant touched the victim all over her body, including her breasts and vaginal area, and inserted his penis into th e victim’s vagina. The victim testified that she and Appellant walked on the same trail and engaged in nonconsensual sexual intercourse on two other occasions, in June and July of 2012. Appellant was fifty-one (51 ) years old at the time of the offenses. The victim was fourteen (14) years old at the time of the first assault, and fifteen (15) years old at the time of th e second and third assaults. The victim told her ex- boyfriend about the assaults. The victim’s ex

boyfriend then told the victim’s parents, and they con tacted the police. At trial, a Pennsylvania State Trooper testified th at he went to Appellant’s residence as part of the investigation. Appellant init ially denied the assaults, but he eventually confessed to the first assault, which occurred on May 24, 2012. The trooper read Appellant his Miranda 2 warnings, and Appellant

r epeated his verbal confession to the trooper. At Appel lant’s request, the trooper wrote down Appellant’s statement, which Appel lant signed. A jury convicted Appellant on January 9, 2014, of st atutory sexual assault, aggravated indecent assault, corruption of min ors, and simple assault. On April 1, 2014, the court sentenced Appella nt to three (3) to ten

____________________________________________ 2 Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966 ).J-S58037- 14

- 3 -

(10) years’ imprisonment, and informed Appellant of h is lifetime registration requirement under the Sex Offender Registration and Notification Act (“SORNA”). 3 Appellant did not file any post-sentence motions. Appe llant timely filed a notice of appeal on April 11, 2014. That same day, the court ordered Appellant to file a concise statement of error s complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied. Appellant raises the following issues for our review:

DID THE COMMONWEALTH FAIL TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT HAD ANY UNLAWFUL CONTACT WITH THE MINOR VICTIM? IS IT UNCONSTITUTIONAL TO REQUIRE APPELLANT TO REGISTER FOR A LIFETIME WHEN SAID REGISTRATION REQUIREMENT EXCEEDS THE STATUTORY MAXIMUM PENALTY FOR APPELLANT’S OFFENSE? IS [SORNA] UNCONSTITUTIONAL IN REQUIRING APPELLANT TO REGISTER FOR A LIFETIME? (Appellant’s Brief at 7). In his first issue, Appellant argues the Commonwealth provided insufficient evidence to prove his guilt. Appellant c ontends the victim did not

____________________________________________ 3 “[SORNA], commonly referred to as the Adam Walsh Act, be came effective on December 20, 2012. By its terms, any individual wh o was then being supervised by the board of p robation or parole was subject to its provisions.” Commonwealth v. Partee , 86 A.3d 245, 246 (Pa.Super. 2014). SORNA replaced Megan’s Law as the statute governing the regist ration and supervision of sex offenders. SORNA designates a convicti on for statutory sexual assault, 18 Pa.C.S.A. § 3122.1(b), as a “Tier II I” sexual offense, subjecting a defendant to a lifetime registration requ irement. 42 Pa.C.S.A. § 9799.14(d)(3); 42 Pa.C.S.A. § 9799.15(a)(3).J-S58037- 14

- 4 -

go to a doctor for a physical examination, and the Co mmonwealth presented no medical evidence that the victim had intercourse with Appellant or anyone else. Appellant alleges the record does not incl ude any evidence that the victim resisted or attempted to fight off A ppellant. Appellant claims the victim continued to go on walks alone with Appel lant and did not fear Appellant. Appellant maintains the Commonwealth fai led to present sufficient evidence to prove beyond a reasonable doubt that the victim ever had intercourse with Appellant. Appellant concludes thi s Court should set aside the verdict. We disagree. Initially, we observe:

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted ...in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evid ence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude eve ry possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact -finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyo nd a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the [trier] of f act while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe al l, part or none of the evidence. Commonwealth v. Hansley , 24 A.3d 410, 416 (Pa.Super. 2011), appealJ-S58037- 14

- 5 -

denied , 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v.
Jones , 874 A.2d 108, 120-21 (Pa.Super. 2005)). Instantly, the trial court concluded:

It cannot be disputed that the age of consent for sexual relations in Pennsylvania is 16 years. [18 Pa.C.S.A. § 3122.1]. In light of the evidence adduced at trial...w hich includes both the victim’s testimony and [Appellant’s] signed, written confession to one of the three sexual encounters, this ground of insufficiency is so utterly without merit as to be frivolous. (Trial Court Opinion, filed May 2, 2014, at 2-3). A review of the record supports the trial court’s conclusions. Therefore, Appell ant’s first issue merits no relief. See Hansley, supra

. In his second and third issues combined, Appellant argue s his lifetime registration requirement under SORNA is unconstitutiona l. Appellant concedes his sentence is legal; however, he contends that im position of an additional lifetime registration requirement is an il legal sentence and unconstitutional. Appellant claims the lifetime regi stration requirement is not merely civil in nature because the court imposes the requirement during sentencing, and a failure to comply can result in incarcer ation. Appellant maintains the additional registration requirement ex ceeds the statutory maximum penalty proscribed for his convictions. Appellan t asserts the lifetime registration requirement does not accomplish r ehabilitation, and constitutes an unusual punishment. Appellant concludes th is Court should declare SORNA’s lifetime registration requirement as un constitutional andJ-S58037- 14

- 6 -

illegal. We disagree. Preliminarily, we recognize that an appellant may n ot successfully advance a new theory of relief for the first time on appeal. Commonwealth v. Haughwout , 837 A.2d 480, 486 (Pa.Super. 2003) (citation omitt ed). “An appellate court should not address constitutional issues unnecessarily or when they are not properly presented and preserved in the trial court for our appellate rev iew.” Commonwealth v. Berryman , 649 A.2d 961, 973 (Pa.Super. 1994) (citation omitted). Thus, “[c]onstit utional issues, even if they go to the legality of the sentence, can be waived .” Id . (citation omitted). In the present case, Appellant challenged the constitut ionality of his lifetime registration requirement for the first time in his Rule 1925(b) statement. Appellant failed to raise these issues at sen tencing or in a postsentence motion. Therefore, Appellant’s second and thir d issues are arguably waived. See id. ; Haughwout, supra

. See generally Commonwealth v. Melendez-Rodriguez , 856 A.2d 1278 (Pa.Super. 2004) (reaffirming principle that defendant cannot r ectify failure to preserve issue at trial by proffering it in Rule 1925(b) state ment). Moreover, the trial court disposed of these claims as f ollows:

The determination that a particular statute is unconstitutional must be made by the Pennsylvania Supreme Court only upon a very clear showing that the statute or sentencing provision is not within constitut ional parameters, since constitutionality is presumed. Nevertheless, the claim of unconstitutionality is waived inJ-S58037- 14

- 7 - that [Appellant] did not raise it in a post-sentence m otion of any type to allow this [c]ourt to address it. [T]his [c]ourt hereby acknowledges the very recent holding in Commonwealth v. Neiman , 84 A.3d 603 (Pa. 2013), which declared Act 152 of 2004, 42 Pa.C.S. § 10 1- 9913, unconstitutional as violative of Article III, Sect ion 3, of the Pennsylvania State Constitution, because i t legislatively enacted law for many separate and dispara te subjects. The Pennsylvania Supreme Court then determined that the Megan’s Law provisions contained therein were not severable so as to continue in effe ct. This [c]ourt notes that the Pennsylvania legislature had alr eady passed [SORNA]..., effective immediately, to re -enact the provisions of Megan’s Law, bringing those provisions into compliance with the federal Adam Walsh requirements so as [to] better protect the citizens of this Commonwealt h. Although all parts of Act 152 of 2004, including Megan ’s Law III, are now unconstitutional, the reasons for such declaration have nothing to do with Megan’s Law itself and/or any of its requirements. The current statute is now popularly known as “Megan’s Law IV” [or SORNA] and, by its own terms, is retroactive. The appellate courts hav e previously determined that the registration requireme nts of Megan’s Law are not criminally punitive, but rathe r serve the important purpose of protecting the citizens o f this Commonwealth from a certain class of offender

— those sexual predators who commit a predicate offense and who also suffer from a volitional impairment that makes th em likely to become recidivists. The Pennsylvania Supreme Court more recently reiterated that the registration requirements are not an ex post facto violation under the United States Constitution, because they do not punish the offender...[.] [T]he legislature has acted swiftly and promptly to re-enact the registration requirements of Megan’s L aw, and has now expressly stated that the provisions are not punitive, but rather are for the p ublic’s protection. (Trial Court Opinion at 3-5) (footnotes and some citat ions omitted). We accept this reasoning and see no reason to disturb the t rial cour t’s decisionJ-S58037- 14

- 8 -

to deny relief. Accordingly, we affirm. Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/6/2014