[J-104-2019]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

COMMONWEALTH OF PENNSYLVANIA,

Appellant

v.

GEORGE J. TORSILIERI,

Appellee

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No. 37 MAP 2018

Appeal from the Order of Chester 

County Court of Common Pleas, 

Criminal Division, dated July 10, 

2018 at No. CP-15-CR-1570-2016.

ARGUED: November 20, 2019

OPINION

JUSTICE BAER DECIDED: June 16, 2020

The Chester County Court of Common Pleas declared Subchapter H of the Sex 

Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S. § 9799.10-9799.42, 

unconstitutional as violative of several provisions of both the United States and 

Pennsylvania Constitutions. Accordingly, this Court has exclusive jurisdiction over this

appeal pursuant to 42 Pa.C.S. § 722(7) (providing the Supreme Court with exclusive 

jurisdiction over “[m]atters where the court of common pleas has held [statutes] invalid as 

repugnant to the Constitution . . . of the United States, or to the Constitution of this 

Commonwealth”). After review, we vacate that portion of the trial court’s order declaring 

Subchapter H unconstitutional and remand for further development of the record.

I. Procedural History

The procedural history of this case is inextricably tied to intervening appellate court 

decisions declaring aspects of prior versions of SORNA unconstitutional and the 
[J-104-2019] - 2

legislative responses to those decisions, which we will address at the outset. On July 3, 

2017, a jury convicted George Torsilieri (“Appellee”) of one count each of aggravated 

indecent assault, 18 Pa.C.S. § 3125(a)(1), and indecent assault, 18 Pa.C.S. § 3126(a)(1), 

but acquitted him of sexual assault, 18 Pa.C.S. § 3124.1.1 The trial court deferred 

sentencing until completion of a presentence investigative report and a sexually violent 

predator assessment by the Sexual Offenders Assessment Board (“SOAB”). 

While sentencing was pending, this Court decided Commonwealth v. Muniz, 164 

A.3d 1189 (Pa. 2017) (plurality), holding, as discussed in detail infra, that the registration 

and notification provisions of the then-applicable SORNA were punitive. A majority of this 

Court consequently concluded that the punitive provisions violated the constitutional 

protections of Pennsylvania’s ex post facto clause when applied retroactively to sexual 

offenders who were convicted prior to December 20, 2012, the effective date of SORNA.

In September 2017, the SOAB concluded that Appellee did not meet the criteria 

for designation as a sexually violent predator (“SVP”). Between the SOAB’s 

determination and Appellee’s sentencing, the Superior Court declared a different aspect 

of SORNA unconstitutional. In Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 

2017) (“Butler I”), the Superior Court concluded that, based upon this Court’s analysis in 

Muniz, the designation of an offender as an SVP required proof of the relevant facts 

beyond a reasonable doubt under Alleyne v. United States, 570 U.S. 99 (2013), and 

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

2

 

 

1 The facts of the crime are unrelated to the legal questions before this Court challenging 

the registration and notification provisions of Subchapter H of SORNA. 

2

 This Court recently rejected the Superior Court’s analysis in Butler I, holding instead

that the registration, notification, and counseling requirements applicable to SVPs did “not 

constitute criminal punishment” and therefore that the SVP designation procedure was 

“constitutionally permissible.” Commonwealth v. Butler, 226 A.3d 972, 976 (Pa. 2020) 
[J-104-2019] - 3

Subsequently, the trial court sentenced Appellee in November 2017 to an 

aggregate incarceration term of one year minus one day to two years minus one day, 

followed by three years of probation, plus payment of a fine and costs. The court originally 

provided that Appellee would be eligible for work release after eighteen months and 

parole after twenty-two months. Additionally, as explained infra, Appellee’s aggravated 

indecent assault conviction automatically categorized him as a Tier III offender, triggering 

lifetime sexual offender registration pursuant to all applicable versions of SORNA. 42 

Pa.C.S. § 9799.14 (d)(7). 

In December 2017, Appellee filed a combined post-sentence motion raising a 

weight of the evidence claim and a motion to reconsider the sentence, and the court held 

a hearing. On February 8, 2018, without reconvening the parties, the court granted 

Appellee’s motion in part and denied it in part, altering the sentence only to allow work 

release after fourteen months, rather than eighteen months, and parole after eighteen 

months, rather than twenty-two months. On February 16, 2018, the Commonwealth filed 

a motion for reconsideration, asserting that the trial court erred in resentencing Appellee 

without reconvening the parties. 

While the motion for reconsideration was pending, Act 10 of 2018, Act of Feb. 21, 

2018, P.L. 27, No. 10, became effective on February 21, 2018 (“Act 10”). As detailed 

infra, Act 10 responded to this Court’s decision in Muniz and the Superior Court’s decision 

in Butler I, declaring aspects of the prior version of SORNA unconstitutional. In relevant 

 

(“Butler II”). As Butler II involves provisions related to the SVP designation process, it is 

not relevant to Appellee, who was not designated an SVP.
[J-104-2019] - 4

part, the amendments included a revised version of Subchapter H, which applies to 

Appellee who was convicted after the original enactment of SORNA.

3

 

Soon thereafter, Appellee challenged the constitutionality of the newly amended 

Subchapter H by filing a Post Sentence Motion Nunc Pro Tunc and a Supplemental Post 

Sentence Motion Filed Nunc Pro Tunc. Appellee claimed that the registration and 

notification provisions of Subchapter H violated his due process rights under the 

Pennsylvania Constitution. The trial court granted Appellee the right to file his motions 

nunc pro tunc in March 2018. 

Prior to a hearing on the pending motions, Appellee filed a subsequent motion on 

May 18, 2018, entitled “Post Sentence Motion to Bar Application of SORNA, Act 10 of 

2018, 42 Pa.C.S. § 9799.10-9799.42 Chapter 97, Subchapter H of Title 42; and/or Motion 

for Habeas Corpus and/or Bar Imposition of an Illegal Sentence,” asserting eight reasons 

that the application of the newly enacted registration and notification provisions were 

unconstitutional, which will be discussed in detail below. Many of the assertions turn on 

the validity of the presumption in SORNA that all sexual offenders are dangerous and 

pose a high risk of recidivation, necessitating registration and notification procedures to 

protect the public from recidivist sexual offenders. Appellee claimed that this presumption 

is not supported by current research, and instead Appellee asserted that the imposition 

of the registration and notification provisions threaten public safety by preventing 

reintegration of the offenders as law-abiding citizens.

Once again, while these motions were pending in the trial court, the General 

Assembly enacted and the Governor signed an amended version of SORNA through Act 

29 of 2018, Act of June 12, 2018, P.L. 140, No. 29, effective immediately on June 12, 

 

3 As explained infra, Act 10 also added Subchapter I, which applies to offenders who 

committed their offenses between April 22, 1996, and December 20, 2012, when SORNA 

became effective. 
[J-104-2019] - 5

2018 (“Act 29”). The parties do not suggest that the amendments of Act 29 alter the 

provisions of Subchapter H relevant to the issues currently under review. It is Act 29’s

iteration of Subchapter H of SORNA that is currently before this Court. For ease of 

discussion, we will refer to the current version of SORNA challenged by Appellee as 

“Revised Subchapter H” and the prior version generally as “SORNA”.

At the July 9, 2018 hearing on the cross-motions, the Commonwealth argued that 

a post-sentence motion hearing was not the appropriate proceeding for adjudicating the 

constitutionality of SORNA based upon scientific challenges to legislative fact-finding 

regarding the likelihood of recidivism and the effectiveness of registration systems.

4

It 

emphasized that this Court in Muniz recently cited to conflicting studies concerning the 

rate of sexual offender recidivation and specifically deferred to the legislature, as the 

proper policy-making body, to address the complex societal issues, in the absence of a 

scientific consensus. Notes of Transcript (“N.T.”), July 9, 2018, at 16-17. Despite the 

Commonwealth’s argument, the court allowed Appellee to introduce affidavits and 

supporting documents of three experts concluding that sexual offenders generally have 

low recidivism rates and questioning the effectiveness of sexual offender registration 

systems such as SORNA. The Commonwealth stipulated to the content of the exhibits

but not their validity or relevance. Moreover, the Commonwealth did “not offer any 

rebuttal expert testimony nor [did it] offer any documents with respect to these witnesses.” 

 

4 The Commonwealth additionally argued that a sentencing court was an inappropriate 

forum for reviewing the constitutionality of the provision because the statute provided that 

at sentencing “the court shall have no authority to relieve a sexual offender from the duty 

to register under this subchapter or to modify the requirements of this subchapter as they 

relate to the sexual offender.” 42 Pa.C.S. § 9799.23(b)(2). While this language forbids a 

court from modifying an offender’s registration requirements as set forth in the statute, we 

do not view this language as limiting a court’s authority to consider the constitutionality of 

the statute.
[J-104-2019] - 6

Id. at 19. It additionally argued that Revised Subchapter H addressed the constitutional 

deficiencies identified in Muniz and Butler I.

At the conclusion of the hearing and in a subsequent order dated July 10, 2018, 

the trial court acknowledged that it erred in failing to re-sentence Appellee in open court 

and attempted to correct the issue by vacating the February 8th order and re-imposing the 

reduced sentence in open court, after explaining its view that Appellee did not have a 

prior record, was youthful, and was a good candidate for rehabilitation.

The court then turned to Appellee’s constitutional challenges.5 It concluded that 

the registration and notification provisions of Revised Subchapter H violated Appellee’s 

right to due process by impairing his right to reputation, as protected by the Pennsylvania 

Constitution, through the utilization of an irrebuttable presumption. The court also 

concluded that the statute violated his right to due process under the United States and 

Pennsylvania Constitutions because the statutory system failed to provide the requisite 

notice and opportunity to be heard. It also concluded that Revised Subchapter H violated 

the separation of powers doctrine because the General Assembly’s enactment of Revised 

Subchapter H essentially removed the trial court’s ability to fashion an individualized 

sentence. Finally, the court held that the statute violated Alleyne and Apprendi by 

allowing “the imposition of enhanced punishment based on an irrebuttable presumption 

of future dangerousness that is neither determined by the finder of fact nor premised upon 

proof beyond a reasonable doubt.” Tr. Ct. Order, July 10, 2018, at 3. The court, therefore, 

vacated Appellee’s sentence to the extent it required him to comply with Revised 

Subchapter H’s sexual offender registration provisions.

 

5 Given the number and complexity of the constitutional challenges, we will set forth the 

trial court’s reasoning on each issue as necessary infra.
[J-104-2019] - 7

The Commonwealth appealed to this Court in July 2018, raising thirteen claims of 

error and invoking this Court’s jurisdiction over decisions of the Courts of Common Pleas 

declaring statutes unconstitutional, 42 Pa.C.S. § 722(7).

6

 Subsequently, we granted the 

Office of the Attorney General’s application for intervention but denied intervention sought 

by the Pennsylvania State Police.

II. Standard and Scope of Review

The constitutional issues before this Court raise questions of law for which our 

standard of review is de novo and our scope of review is plenary. Muniz, 164 A.3d at 

1195. In addressing constitutional challenges to legislative enactments, we are ever 

cognizant that “the General Assembly may enact laws which impinge on constitutional 

rights to protect the health, safety, and welfare of society,” but also that “any restriction is 

subject to judicial review to protect the constitutional rights of all citizens.” In re J.B., 107 

A.3d 1, 14 (Pa. 2014). We emphasize that “a party challenging a statute must meet the 

high burden of demonstrating that the statute clearly, palpably, and plainly violates the 

Constitution.” Id. (internal quotations marks and citation omitted).

III. History of Sexual Offender Registration in Pennsylvania

The case at bar presents the latest in a series of constitutional challenges to 

Pennsylvania’s sexual offender registration and notification provisions spanning the last 

two decades. We review these cases and the legislative responses as they are relevant

to the issues now on appeal. 

In 1999, this Court deemed unconstitutional a provision of what has come to be 

known as Megan’s Law I, 42 Pa.C.S. §§ 9791-9799.6 (repealed). Commonwealth v. 

 

6 Appellee additionally appealed his judgment of sentence to the Superior Court, which 

affirmed in an unpublished decision, 2300 EDA 2018. Appellee filed a petition for 

allowance of appeal with this Court, raising issues unrelated to the Commonwealth’s 

challenges currently under review, which was denied on April 22, 2020. Commonwealth 

v. Torsilieri, ___ A.3d ___, 2020 WL 1933752 (Pa. April 22, 2020).
[J-104-2019] - 8

Williams, 733 A.2d 593 (Pa. 1999) (“Williams I”). Under Megan’s Law I, sexual offenders 

were presumed to be sexually violent predators and were subject to a potential maximum 

sentence of life imprisonment, unless the offender rebutted the presumption by clear and 

convincing evidence. We concluded that the statute as enacted was “constitutionally 

repugnant” because it placed the burden of proof on the individual rather than the 

Commonwealth and struck “all of the relevant provisions of the Act pertaining to sexually 

violent predators.” Id. at 603, 608. The decision did not consider the effect of notification 

and registration requirements for those not designated SVPs. 

In Commonwealth v. Gaffney, 733 A.2d 616 (Pa. 1999), a companion case to 

Williams I, the Court addressed the notification requirements and concluded that they 

were not punitive, and, therefore, did not violate the ex post facto protections. In so 

concluding, this Court utilized a test articulated by the Court of Appeals for the Third 

Circuit in Artway v. Attorney General, 81 F.3d 1235 (3d Cir. 1996), and E.B v. Verniero, 

119 F.3d 1077 (3d Cir. 1997).7In discussing the merits of Gaffney’s argument, this Court 

distinguished the provisions of Megan’s Law I from the colonial era punishment of public 

shaming by emphasizing the limited registration and notification provisions of Megan’s 

Law I, which only required annual verification of the offender’s current address for ten 

years and limited distribution of that information to the local police. 

In the wake of Williams I and Gaffney, the General Assembly enacted Megan’s 

Law II, 42 Pa.C.S. §§ 9791–9799.7 (expired), in May 2000 to address the constitutionally 

defective aspects of Megan’s Law I, relating to SVP designation. In addition, Megan’s 

Law II also altered the registration requirements for all offenders, regardless of SVP 

 

7 The Artway-Verniero test provided “that a particular measure will be considered 

punishment where: (1) the legislature’s actual purpose is punishment, (2) the objective 

purpose is punishment, or (3) the effect of the statute is so harsh that ‘as a matter of 

degree’ it constitutes punishment.” Gaffney, 733 A.2d at 618.
[J-104-2019] - 9

classification, who were convicted of a predicate offense. It mandated either ten-year or 

lifetime registration of their addresses upon release and any subsequent change in 

address, which information was provided to the local chief of police. The police 

additionally alerted neighbors and local day care and school officials to SVPs living in the 

neighborhood, providing information including a photo, the address, and the offense. 

In Commonwealth v. Williams, 832 A.2d 962, 964 (Pa. 2003) (“Williams II”), this 

Court confronted the question of “whether the statute’s registration, notification, and 

counseling requirements, applicable to individuals deemed sexually violent predators, 

constitute[d] criminal punishment,” which would have resulted in a violation of the United 

State Supreme Court’s holding in Apprendi, requiring all factual determinations that result 

in increasing a defendant’s punishment beyond the statutory maximum to be made by a 

jury and proven beyond a reasonable doubt. 

In Williams II, this Court recognized that since its decision in Gaffney, the United 

States Supreme Court had adopted a test applicable to whether a sexual offender 

registration and notification statute was punitive. In Smith v. Doe I, 538 U.S. 84 (2003),

the High Court, reviewing an ex post facto challenge to Alaska’s version of Megan’s Law, 

applied a test developed in Kennedy v. Mendoza–Martinez, 372 U.S. 144 (1963).

8

 As will 

be discussed in detail infra, this Court applied the Mendoza-Martinez test and concluded 

that the Megan’s Law II registration, notification, and counseling provisions, applicable to 

 

8

In Smith, the United States Supreme Court reviewed the constitutionality of Alaska’s 

Sex Offender Registration Act, which involved retroactive quarterly registration and 

notification provisions that resulted in the public disclosure of an offender’s name, 

address, conviction, photograph, and various other information on the internet. 

Relevantly, the registration provision did not require in-person updates to the information. 

The Court concluded that the provisions were not punitive and therefore did not violate 

the federal ex post facto clause. 
[J-104-2019] - 10

SVPs, did not violate Apprendi.

9 While not presented in the case, we acknowledged, in 

dicta, that the lifetime registration, notification, and counseling period was “one of the 

most troubling aspects of the statute.” Williams II, 832 A.2d at 982. Referencing the 

seventh Mendoza-Martinez factor of excessiveness, we opined that “[a] reasonable 

argument could be made that, to avoid excessiveness, the Legislature was required to 

provide some means for a sexually violent predator to invoke judicial review in an effort 

to demonstrate that he no longer poses a substantial risk to the community.” Id. at 982–

83.

10

 

In 2007, this Court addressed whether the lifetime registration, notification, and 

counseling provisions applicable to SVPs constituted punishment implicating various 

constitutional challenges. Commonwealth v. Lee, 935 A.2d 865 (Pa. 2007). In so doing, 

we reiterated that only a demonstration of the “clearest proof” can overcome a legislative 

assertion that a standard is civil rather than punitive. Id. at 877 (quoting Williams II, 832 

A.2d at 973). Applying this standard, we recognized that the first six Mendoza-Martinez

factors had been found to weigh in favor of finding the provisions non-punitive in prior 

cases considering Megan’s Law II. Id. at 885. We, therefore, focused on the seventh 

factor: whether the procedure was excessive in comparison to the non-punitive purpose. 

While we acknowledged the offenders’ proffered scientific studies arguably 

demonstrated that the risk of recidivism diminishes with age, we nevertheless held that 

 

9 We additionally concluded in Williams II that the punishment for an SVP’s failure to 

comply was unconstitutionally punitive but severable. 

10 In 2004, the General Assembly passed Act 152, a subset of which became known as 

Megan’s Law III. This Court, however, determined that the Act as passed violated the 

single-subject requirement of Article III, Section 3 of the Pennsylvania Constitution, as it 

contained various other provisions not sufficiently related to Megan’s Law. 

Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013). Concluding that the provisions could 

not be severed, the Court struck Act 152 in its entirety. 
[J-104-2019] - 11

the studies merely constituted “a counter-narrative to the evidence that the General 

Assembly relied upon in gauging the necessity and formulating the provisions of Megan's 

Law, which also is supported by empirical evidence and numerous studies.” Id. 

Accordingly, we concluded that the challengers failed to meet their burden of proving 

Megan’s Law II unconstitutional by demonstrating that it was punitive. We emphasized 

that the “clearest proof” standard “cannot be satisfied merely by providing evidence 

militating in favor of a more generous account of the likelihood of rehabilitation than that 

found by the General Assembly in originally fashioning its legislation requiring registration 

of sex offenders.” Id. at 886.

In 2012, the General Assembly adopted the Sex Offender Registration and

Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10–9799.41 (“SORNA”), which became 

effective on December 20, 2012, replacing Megan’s Law II’s provisions. A stated purpose 

of SORNA was “[t]o bring the Commonwealth into substantial compliance with the Adam 

Walsh Child Protection and Safety Act of 2006 (Public Law 109-248, 120 Stat. 587).” 42 

Pa.C.S. § 9799.10(1). The federal law mandated states’ adoption of a tier-based 

registration and notification framework for sex offenders. States that do not enact the 

provisions are subject to a penalty, unless the state demonstrates that implementation of 

a provision “would place the jurisdiction in violation of its constitution, as determined by a 

ruling of the jurisdiction's highest court.” 34 U.S.C. § 20927(a), (b)(1). The federal 

provisions explain that in such cases “the Attorney General [of the United States] may 

determine that the jurisdiction is in compliance with this chapter if the jurisdiction has 

made, or is in the process of implementing reasonable alternative procedures or 

accommodations, which are consistent with the purposes of this chapter.” Id.

§ 20927(b)(3).
[J-104-2019] - 12

In adopting SORNA and implementing the federal requirements, the General 

Assembly set forth legislative findings and a declaration of policy in which it explained 

that “[t]he Adam Walsh Child Protection and Safety Act of 2006 provides a mechanism 

for the Commonwealth to increase its regulation of sexual offenders in a manner which is 

nonpunitive but offers an increased measure of protection to the citizens of this 

Commonwealth.” 42 Pa.C.S. § 9799.11(a)(2). The Act continues, “If the public is 

provided adequate notice and information about sexual offenders, the community can 

develop constructive plans to prepare for the presence of sexual offenders in the 

community.”11 Id. § 9799.11(a)(3); see also Id. § 9799.11(a)(6), (7), (8). 

In line with the federal requirements, the Act created a three-tier registration 

system based upon the underlying criminal offense, with Tier III applying to the most 

severe sexual offenses. Id. § 9799.14. The duration and frequency of the periodic 

 

11 The Act provides a similar statement in its declaration of policy, which provides in 

relevant part:

(1) It is the intention of the General Assembly to substantially 

comply with the Adam Walsh Child Protection and Safety Act 

of 2006 and to further protect the safety and general welfare 

of the citizens of this Commonwealth by providing for 

increased regulation of sexual offenders, specifically as that 

regulation relates to registration of sexual offenders and 

community notification about sexual offenders.

(2) It is the policy of the Commonwealth to require the 

exchange of relevant information about sexual offenders 

among public agencies and officials and to authorize the 

release of necessary and relevant information about sexual 

offenders to members of the general public as a means of 

assuring public protection and shall not be construed as 

punitive.

42 Pa.C.S. § 9799.11(b)(1), (2).
[J-104-2019] - 13

reporting requirements vary across the tiers with Tier 1 offenders required to report 

annually for fifteen years, Tier II offenders reporting semiannually for twenty-five years, 

and Tier III offenders reporting quarterly for their lifetimes.12 Id. § 9799.15(a). This 

provision also dictates various events necessitating in-person reporting, such as a change 

in address, employment, telephone number, or email address. Id. § 9799.15(g). An 

offender that is required to register is subject to prosecution for failure to comply under 

18 Pa.C.S. § 4915.1.

As directly relevant to the issues in the case at bar, the General Assembly 

additionally declared, “Sexual offenders pose a high risk of committing additional sexual 

offenses and protection of the public from this type of offender is a paramount 

governmental interest.” 42 Pa.C.S. § 9799.11(a)(4). SORNA establishes that a statewide registry of sexual offenders is to be maintained by the state police and dictates a 

substantial list of information regarding the offender to be included on the registry. Id.

§ 9799.16. The Act dictates that the State Police should develop a system that 

disseminates the registrants’ information to the public through a website and allows the 

public to search that information by “any given zip code or geographic radius set by the 

user.” Id. § 9799.28. It further mandates that a trial court “shall have no authority to 

relieve a sexual offender from the duty to register under this subchapter or to modify the 

requirements of this subchapter as they relate to the sexual offender.” Id. § 9799.23(b)(2).

As with its predecessors, SORNA’s enactment spurred numerous constitutional 

challenges to the increased registration and reporting requirements, and many of the 

claims are echoed in the challenges currently before this Court. In In re J.B., 107 A.3d 1 

(Pa. 2014), juvenile sexual offenders raised numerous constitutional challenges to 

 

12 Sexual violent predators are also subjected to quarterly lifetime registration regardless 

of the tier level of the underlying crime as well as additional requirements such as 

counseling under Section 9799.36. Id. at 9799.15(a)(6), (d), (f).
[J-104-2019] - 14

SORNA’s application including a claim that it violated their due process rights by utilizing 

an irrebuttable presumption that all juvenile offenders “pose a high risk of committing 

additional sexual offenses,” 42 Pa.C.S. § 9799.11(a)(4). This Court recognized that to 

establish a violation of the doctrine, the challenging party must demonstrate (1) an interest 

protected by the due process clause, (2) utilization of a presumption that is not universally 

true, and (3) the existence of a reasonable alternative means to ascertain the presumed 

fact. J.B., 107 A.3d at 15-16.

Applying the first element of the doctrine, this Court concluded that the juveniles in 

J.B. had asserted a protected interest in their right to reputation, which is protected as a 

fundamental right under the Pennsylvania Constitution but is not specifically included in

the federal constitution. Id. at 16. We additionally opined that their right to reputation had 

been infringed by the statutory declaration “that sexual offenders, including juvenile 

offenders, ‘pose a high risk of committing additional sexual offenses and protection of the 

public from this type of offender is a paramount governmental interest.’ 42 Pa.C.S. 

§ 9799.11(a)(4).” Id. This Court emphasized that juvenile offenders did not have a 

meaningful opportunity to challenge the presumption of recidivism and dangerousness. 

This Court next considered whether the presumption of a high risk of recidivism 

was universally true when applied to juveniles convicted of sexual offenses. We observed 

that the trial court in J.B. had credited research which indicated that juvenile offenders 

had low levels of recidivism. Id. at 17-18. Importantly, these findings drew support from

recent United States Supreme Court decisions recognizing the fundamental differences 

between juveniles and adults including greater impulsivity due to lack of maturity, 

increased vulnerability to negative influences, and malleability of character. Id. at 18-19

(discussing Miller v. Alabama, 567 U.S. 460 (declaring unconstitutional mandatory life 

imprisonment without parole for crimes committed as a juvenile); Graham v. Florida, 560 
[J-104-2019] - 15

U.S. 48 (2010) (prohibiting imposition of life without parole for non-homicide crimes 

committed as a juvenile); Roper v. Simmons, 543 U.S. 551 (2005) (forbidding imposition 

of death penalty on those who commit offenses as juveniles)). We observed that the trial 

court opined that “these distinctions between adults and juveniles are particularly relevant 

in the area of sexual offenses, where many acts of delinquency involve immaturity, 

impulsivity, and sexual curiosity rather than hardened criminality.” Id. at 19. Given this 

corroborated research, we concluded that the statutory presumption that juveniles sexual 

offenders were at high risk of recidivating was not universally true.

Finally, we evaluated whether reasonable alternative means existed to ascertain 

whether a juvenile offender was at high risk of recidivism. The Court observed that 

SORNA already provided for individualized assessment of adult sexual offenders as 

sexually violent predators and juvenile offenders as sexually violent delinquent children. 

We therefore concluded that a similar individualized assessment process could be used 

to consider whether juvenile sexual offenders posed a high risk of recidivating. 

Accordingly, we held that application of SORNA's lifetime registration requirements to 

juvenile offenders violated their due process rights by utilizing an irrebuttable presumption 

that they posed a high likelihood of recidivating. 

Three years after deciding J.B., this Court additionally found SORNA violated adult 

offenders’ ex post facto rights due to its retroactive application to those convicted prior to 

its effective date of December 20, 2012. Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 

2017) (plurality). The decision in Muniz hinged on whether the registration and notification 

provisions of SORNA were punitive, such that the protections of the ex post facto clause 

applied. The Court applied the Mendoza-Martinez test as adopted in Williams II but 

reached the opposite conclusion. The Court distinguished SORNA’s requirements from 

those of Megan’s Law II in a thorough analysis of each of the seven factors in the 
[J-104-2019] - 16

Mendoza-Martinez test.

13

 Weighing all seven factors, the Court concluded that SORNA 

was punitive, such that retroactive application of the provision violated Pennsylvania’s ex 

post facto clause.14 

Months later, the Superior Court applied our decision in Muniz sua sponte to a 

constitutional challenge to SORNA’s SVP designation process in Butler I. It read our 

decision as providing that all SORNA registration requirements “are now deemed to be 

punitive and part of the criminal punishment imposed upon a convicted defendant.” Butler

I, 173 A.3d at 1215. Based upon this conclusion, the Superior Court found that the SVP 

determination, which it viewed as punitive, hinged on a trial court’s findings based only 

upon clear and convincing evidence. 42 Pa.C.S. § 9799.24(e)(3) (instructing that “the 

court shall determine whether the Commonwealth has proved by clear and convincing 

evidence that the individual is a sexually violent predator”). It, thus, deemed SORNA’s 

SVP designation process unconstitutional as violative of Apprendi and Alleyne.

15

 

In response to Muniz and Butler I, the General Assembly enacted Act 10, 

specifically declaring that “[i]t is the intention of the General Assembly to address the 

Pennsylvania Supreme Court's decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 

2017) and the Pennsylvania Superior Court's decision in Commonwealth v. Butler, [173 

A.3d 1212 (Pa. Super. 2017)].” 42 Pa.C.S. § 9799.11(4). Act 10 split SORNA, which was 

previously designated in the Sentencing Code as Subchapter H into two subchapters. 

 

13 We will address in detail this Court’s treatment of each of the factors in summarizing 

the trial court’s analysis of the current iteration of Revised Subchapter H infra.

14 While a majority of justices agreed that SORNA violated the state ex post facto clause, 

the Court divided as to whether the federal and state ex post facto clauses were 

coterminous and whether the Court should address the question under the federal 

provision. 

15 As noted, this Court subsequently reversed the Superior Court’s decision in Butler II, 

226 A.3d 972, holding the SVP designation process constitutional.
[J-104-2019] - 17

Revised Subchapter H applies to crimes committed on or after December 20, 2012, 

whereas Subchapter I 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.

16

Presumably attempting to address this Court and the Superior Court’s 

determinations that the prior registration and notification requirements were punitive, the 

General Assembly modified some of the SORNA provisions. Specifically, it created a 

process by which a Tier II or III offender’s in-person semi-annual or quarterly registrations 

could be reduced after three years and replaced with annual in-person and semi-annual 

or quarterly phone registrations if the offender complies with all registration requirements 

for the first three years and has not been convicted of another offense punishable by more 

than a year of incarceration. 42 Pa.C.S. § 9799.25(a.1). It additionally limited the nonsexual offenses triggering SORNA registration.17 Finally, it provided a process for sexual 

 

16 We recognize that challenges to the registration and notification provisions of 

Subchapter I are also currently pending in this Court following argument in November

2019 in Commonwealth v. Lacombe, 35 MAP 2018, and Commonwealth v. Witmayer, 64 

MAP 2018. In Lacombe and Witmayer, we are reviewing a trial court’s declaration of 

Subchapter I’s provisions as punitive and thus, as an unconstitutional violation of the ex 

post facto clause, whereas, in the case at bar, we consider only Revised Subchapter H.

17 Appellee observes that the General Assembly did not remove from the tier registration 

provisions all of the non-sexual offenses highlighted by this Court in Muniz. Specifically, 

the requirements still apply to those convicted of unlawful restraint, 18 Pa.C.S. § 2902(b); 

false imprisonment, 18 Pa.C.S. § 2903(b); or filing factual statement about alien 

individual, 18 U.S.C. § 2424. Appellee Brief at 12-13 (citing 42 Pa.C.S. § 9799.14(b)(1)-

(3), (19)). In regard to the offense of interference with custody of a child, 18 Pa.C.S. 

§ 2904, Appellee asserts that new Section 9799.14(b)(3) amended the provision only to 
[J-104-2019] - 18

offenders to petition for removal from the registry after twenty-five years if they 

demonstrate the absence of any conviction for an offense punishable by more than a year 

of incarceration and proof by “clear and convincing evidence that exempting the sexual 

offender . . . is not likely to pose a threat to the safety of any other person.” Id.

§ 9799.15(a.2). As noted, Act 10 was later reenacted as Act 29.

IV. Analysis

With this background in mind, we address the Commonwealth and the Attorney 

General’s challenges to the trial court’s holdings that Revised Subchapter H violates 

numerous constitutional protections. The court’s conclusions will be considered in two 

broad categories. First, the court held that Revised Subchapter H violates Pennsylvania’s 

due process protections through the unconstitutional use of an irrebuttable presumption.

The trial court considered this holding as implicating both procedural and substantive due 

process protections. As this Court and others have refused to “pigeonhole” the 

irrebuttable presumption doctrine into either due process category, we address this claim 

simply as an irrebuttable presumption challenge. Com., Dept. of Transp., Bureau of 

Driver Licensing v. Clayton, 684 A.2d 1060, 1064 (Pa. 1996) (opining that “we do not 

believe it wise to pigeonhole whether an analysis of an irrebuttable presumption is solely 

one of substantive or procedural due process”).

Second, the trial court held that Revised Subchapter H’s registration and 

notification provisions are punitive in nature such that they must comply with all 

constitutional and statutory protections applicable to sentencing. Based on the 

determination of punitive effect, the trial court concluded that the registration 

 

exempt “cases where the defendant is the child’s parent, guardian or other lawful 

custodian.” 42 Pa.C.S. § 9799.14(b)(3). He emphasizes that the section would still result 

in registration for any “other family members, like non-custodial grandparents or siblings.” 

Appellee Brief at 13. 
[J-104-2019] - 19

requirements, which can result in lifetime registration branding an offender as at high risk 

of recidivation, violated (1) the requirements of Apprendi and Alleyne, (2) imposed 

sentences in excess of the statutory maximum sentence, (3) constituted cruel and 

unusual punishment, and (4) violated the separation of powers doctrines by preventing 

trial courts from imposing individualized sentences. We recognize that several of these 

holdings implicate both federal and state constitutional provisions.

A. Trial Court’s Consideration of Scientific Evidence

Prior to considering the merits of these constitutional determinations, we first 

attend to the Commonwealth and Attorney General’s overarching assertion that the trial 

court’s holdings are based on its improper admission of and reliance upon Appellee’s 

expert affidavits calling into question the underpinnings of Revised Subchapter H. The 

Commonwealth parties’ arguments focus on two aspects of the trial court’s analysis: (1) 

its refusal to defer to the legislative determination that sexual offenders as a cohort pose 

a danger to the public health due to their high risk of recidivation and (2) its rejection of 

the legislative conclusion that tier-based sexual offender registration systems, as 

exemplified by Revised Subchapter H, are an effective means of protecting the public 

from the danger posed by sexual offenders. 

The Commonwealth asserts that a challenge based on evidence of recidivism 

rates and the effectiveness of tier-based registration systems was recently presented to 

and rejected by this Court in Muniz. In that case, we opined, “In this context, we find 

persuasive [the] argument that policy regarding such complex societal issues, especially 

when there are studies with contrary conclusions, is ordinarily a matter for the General 

Assembly.” Muniz, 164 A.3d at 1217. The Commonwealth asserts that legislative 

findings are “entitled to a prima facie acceptance of their correctness.” Com. Reply Brief 

at 2. It relies upon this Court’s reasoning that “[s]uch a rule is salutary because courts 
[J-104-2019] - 20

are not in a position to assemble and evaluate the necessary empirical data which forms

the basis for the legislature’s findings.” Id. (quoting Basehore v. Hampden Industrial 

Development Authority, 248 A.2d 212, 217 (Pa. 1968)). The Commonwealth emphasizes 

this Court’s repeated acknowledgment that policy determinations should be left to the 

legislative branch. Id. at 2-3 (citing, inter alia, Commonwealth v. Hale, 128 A.3d 781, 785-

86 (Pa. 2015), and Program Administration Services, Inc. v. Dauphin County General 

Authority, 928 A.2d 1013, 1017- 1018 (Pa. 2007)). 

The Attorney General additionally contests the merits of the evidence relied upon 

by the trial court, asserting that Appellee cherry-picked the studies in support of his 

assertions and ignored contradictory research. Despite failing to provide contrary 

evidence during the post-sentence motion before the trial court, the Attorney General now 

highlights a recent study refuting Appellee’s experts’ conclusions. Attorney General 

(“A.G.”) Reply Brief at 4 (citing Drs. Nicolas Scurich and Richard John, “The Dark Figure 

of Sexual Recidivism,” University of California Irvine, School of Law, Legal Studies 

Research Paper Series No. 2019-09, https://ssrn.com/abstract=3328831 (Feb. 4, 

2019)).18 Given this underlying dispute, the Attorney General asserts that “[c]ourts are 

 

18 Respectfully, Justice Donohue, in dissent, oversimplifies the Commonwealth’s 

response to Appellee’s experts. The Dissent correctly observes that the Attorney General 

contends that Appellee’s experts underestimate the total number of sexual offenses, thus 

understating the actual recidivism rate. Dissenting Op. at 2 (Donohue, J., dissenting). 

The Attorney General, however, also generally challenges “many of the assumptions and 

conclusions” of Appellee’s experts and specifically argues that the studies relied upon by 

Appellee’s experts utilize short time frames that fail to account fully for all the recidivist 

acts of sexual offenders. A.G. Reply Brief at 4-7. 

Similarly, while the Dissent correctly recognizes that “[t]he Commonwealth stipulated to 

the content but not the validity or relevance” of the Appellee’s experts’ affidavits, it later 

suggests the opposite by opining that the Commonwealth stipulated to Appellee’s 

conclusion that the recidivism risk was “nowhere near the ‘frightening and high’ rate

assumed by” prior cases. Dissenting Op. at 1, 5 (Donohue, J., dissenting). The Attorney 
[J-104-2019] - 21

not the proper forum for scientists to debate controversies and are ill equipped to 

determine scientific truth.” Id. at 8 (relying inter alia on Muniz, 164 A.3d at 1217, and Lee, 

935 A.2d at 885). It maintains that, in the absence of scientific consensus, “legislative 

findings and public policy judgments of the General Assembly are not subject to judicial 

second-guessing.” Id. at 7. 

We acknowledge the danger of courts overriding legislative determinations for all 

the reasons highlighted by the Commonwealth parties. As we have repeatedly observed, 

“the General Assembly's ability to examine social policy issues and to balance competing 

considerations is superior to that of the judicial branch.” Hale, 128 A.3d at 785–86 (citing 

Lance v. Wyeth, 85 A.3d 434, 454 & n.26 (Pa. 2014)). Indeed, as the Commonwealth 

parties emphasize, we recently opined on the same scientific dispute observing that 

“[a]lthough there are contrary scientific studies, we note there is by no means a 

consensus, and as such, we defer to the General Assembly's findings on this issue.” 

Muniz, 164 A.3d at 1217. 

Nevertheless, our deference to legislative determination is not boundless. Indeed 

even in the cases relied upon by the Commonwealth, the limits are clear. In Hale, we 

opined that “substantial policy considerations” “are generally reserved, in the first 

instance, to the General Assembly,” but clarified that the policy determinations were 

nonetheless “subject to the limits of the Constitution.” Hale, 128 A.3d at 785-86. Similarly,

in Program Administrative Services, we cabined our statement that “courts should not 

lose sight of the respective roles of the General Assembly and the courts in terms of 

establishing public policy” by nevertheless emphasizing that the General Assembly policy 

making function was “subject to constitutional limitations.” Program Admin. Services, Inc., 

 

General, presumably, would adamantly dispute this assertion as its argument

emphasizes a conflict among social scientists regarding the recidivism rates of sexual 

offenders. A.G. Reply Brief at 4-7. 
[J-104-2019] - 22

928 A.2d at 1017-18. These statements reaffirm that our underlying system of checks 

and balances requires the courts to serve as a backstop to protect constitutional rights of 

our citizens even where legislative social policy determinations are involved. See 

generally In re Fortieth Statewide Investigating Grand Jury, 197 A.3d 712, 715 (Pa. 2018) 

(“[A]s with all legal proceedings which affect fundamental individual rights, the judicial 

branch serves a critical role in guarding against unjustified diminution of due process 

protections for individuals whose right of reputation might be impugned.”)

As described above, we recently addressed related scientific evidence which 

called into question the General Assembly’s determination that juvenile offenders posed 

a significant risk of recidivism requiring registration under SORNA. In J.B., we concluded 

that the scientific consensus relating to adolescent development, as recognized through 

the United States Supreme Court’s jurisprudence, refuted the legislative presumption that 

all juvenile offenders were at high risk of recidivation. J.B., 107 A.3d at 17-19. This 

scientific evidence, in turn, undermined the constitutionality of the application of SORNA’s 

registration and notification procedures to juvenile offenders as it violated their right to 

reputation under the Pennsylvania Constitution.

Our conclusion in J.B., while not controlling given its focus on juvenile 

development, demonstrates that a viable challenge to legislative findings and related 

policy determinations can be established by demonstrating a consensus of scientific 

evidence where the underlying legislative policy infringes constitutional rights. In such 

cases, it is the responsibility of the court system to protect the rights of the public. Indeed, 

we have a particular responsibility in regard to SORNA, given that only a decision by this 

Court, finding select provisions unconstitutional under the Pennsylvania’s charter, can 

safeguard the constitutional rights of Pennsylvanians while also potentially averting the 
[J-104-2019] - 23

loss of federal funding due to Pennsylvania’s non-compliance with the federal Adam 

Walsh Act. 34 U.S.C. § 20927. 

Accordingly, we respectfully reject the Commonwealth parties’ categorical 

contention that the trial court lacked the authority to consider Appellee’s scientific 

evidence and to question the validity of the General Assembly’s findings and policy 

determinations in regard to the contention that Appellee’s various constitutional rights 

were violated by the statutory provisions based upon the legislative determinations. 

Nevertheless, we remain mindful that “the wisdom of a public policy is one for the 

legislature, and the General Assembly's enactments are entitled to a strong presumption 

of constitutionality rebuttable only by a demonstration that they clearly, plainly, and 

palpably violate constitutional requirements.” Shoul v. Com., Dept. of Transp., Bureau of 

Driver Licensing, 173 A.3d 669, 678 (Pa. 2017). 

Based on the evidence relied upon by the trial court, Appellee poses colorable

constitutional challenges to Revised Subchapter H’s registration and notification 

provisions based upon his asserted refutation of two critical legislative determinations: (1) 

that all sexual offenders pose a high risk of recidivation and (2) that the tier-based 

registration system of Revised Subchapter H protects the public from the alleged danger 

of recidivist sexual offenders. 

Appellee first presents a body of research indicating that adult sexual offender 

recidivism rates have been improperly exaggerated, including through citations by this 

Court and the United States Supreme Court. As an example, he references the Courts’ 

repeated declaration that sexual offenders have a “frightening and high” risk of recidivism, 

which in turn provided support for upholding various iterations of sexual offender 

registration systems. Appellee Brief at 17 (citing Smith, 538 U.S. at 103 (quoting McKune 

v. Lile, 536 U.S. 24, 34 (2002))); see also Lee, 935 A.2d at 882. Appellee claims that this
[J-104-2019] - 24

oft-quoted language derives not from rigorous scientific evidence but from an 

unsupported claim in “a 1988 National Institute of Corrections training manual, which in 

turn cited a 1986 Psychology Today article written for a lay audience.” Appellee Brief at 

17 (citing Ira Ellman and Tara Ellman, “Frightening and High”: The Supreme Court's 

Crucial Mistake About Sex Crime Statistics, 30 Const. Comment. 495 (2015)). He cites 

substantial recent evidence undermining this claim.

Appellee additionally presents research indicating that the tier-based registration 

systems increase, rather than decrease, danger to the public because the reporting 

systems stigmatize the offender and their families and remove them from support 

systems. He claims that research reveals that the most effective systems for identifying 

recidivism are those that utilize empirically derived assessment tools based on “identified 

risk factors that correlate well with observed recidivism levels,” in contrast to the use of 

tier systems based upon the underlying criminal offense, which fail to take into account 

individual risk factors. Appellee Brief at 57. 

Nevertheless, we are unable to conclude based upon the record currently before 

this Court whether Appellee has sufficiently undermined the validity of the legislative 

findings supporting Revised Subchapter H’s registration and notification provisions, 

especially in light of the contradictory scientific evidence cited by the Commonwealth

during this appeal which may refute the Appellee’s experts. It is not the role of an 

appellate court to determine the validity of the referenced studies based on mere citations 

rather than allowing the opportunity for the truths to develop through a hearing on the 

merits of the evidence. Accordingly, a remand is appropriate to allow the parties to 
[J-104-2019] - 25

address whether a consensus has developed to call into question the relevant legislative 

policy decisions impacting offenders’ constitutional rights.

19

 

In framing the remand, we must first determine the extent to which each of the trial 

court’s conclusions of unconstitutionality rested on its crediting of the Appellee’s scientific 

evidence. Accordingly, we now address the court’s specific determinations on each of 

Appellee’s claims.

B. Due Process- Irrebuttable Presumption

We turn first to the trial court’s conclusion that the registration and notification 

provisions of Revised Subchapter H violate Pennsylvania’s due process protection 

through the unconstitutional utilization of an irrebuttable presumption infringing upon the 

right to reputation. The court highlighted that, unlike the federal constitution, the 

Pennsylvania Constitution specifically protects the right to reputation as a fundamental 

right in Article I, Section 1, which provides: “All men are born equally free and 

independent, and have certain inherent and indefeasible rights, among which are those 

of enjoying and defending life and liberty, acquiring, possessing and protecting property 

and reputation, and of pursuing their own happiness.” Pa. Const., Art. I, § 1.

The trial court held the registration and notification provisions of SORNA to be 

facially unconstitutional, as well as unconstitutional as applied to Appellee, due to the

 

19 We observe that our colleagues in dissent would resolve the scientific dispute on the 

evidence presented by Appellee and cited by the Attorney General in briefing to this Court. 

Their independent analysis of the scientific evidence, however, leads to diametrically 

opposed conclusions. Justice Mundy would reverse the trial court concluding that 

Appellee failed to demonstrate that the legislative determinations are “unsupported by 

current scientific research in a manner that would render the statute unconstitutional,”

Dissenting Op. at 1 (Mundy, J., dissenting), whereas Justice Donohue would affirm the 

unconstitutionality of Revised Subchapter H based upon her assessment of the scientific 

evidence cited by the Commonwealth in its briefing to this Court. Respectfully, this 

divergence of opinion further solidifies the necessity of a remand to develop the factual 

record and allow argument regarding the scientific evidence as discussed further, infra at 

41-44. 
[J-104-2019] - 26

legislature’s use of the irrebuttable presumption that all sexual offenders pose a high risk 

of sexual recidivism. Tr. Ct. Op. at 43 (citing 42 Pa.C.S. § 9799.11(a)(4)), 52. It 

recognized that the test for an unconstitutional irrebuttable presumption requires three 

factors: (1) the existence of a presumption that impacts “an interest protected by the due 

process clause;” (2) a presumption that “is not universally true;” and (3) the existence of

reasonable alternatives to ascertain the presumed fact. Id. at 43. 

Applying these factors, the court first opined that “[t]here can be no real 

disagreement that the label of high risk dangerous sex offender impacts one’s 

fundamental right to reputation.” Id. at 45. In coming to this conclusion, the court relied 

upon the scientific research presented during the hearing demonstrating that the label of 

sexual recidivist stigmatized offenders and subjected them to difficulty finding housing, 

employment, and education as well as erected barriers to the establishment of “pro-social 

relationships with others.” Id. at 43 (citing scientific research admitted into evidence). 

The court opined that “[t]he public declaration, based on faulty premises . . . , that all 

sexual offenders are dangerous recidivists only serves to compound the isolation and 

ostracism experienced by this population and sorely diminish their chances of 

productively reintegrating into society.” Id. at 44. The court additionally stated that the 

registration and notification provisions applied not only to sexual offenses but also to 

crimes such as unlawful restraint, 18 Pa.C.S. § 2902(b), which did not necessarily entail 

sexual conduct, but yet subjected the offenders to “global public shaming as incorrigible 

sexual recidivists.” Id. at 44-45. 

Addressing the second prong concerning whether the presumption is universally 

true, the court again looked to the research presented by Appellee. The court observed

that the research indicated that eighty to ninety percent of all sexual offenders are never 

reconvicted for a sexual crime. Id. at 45. Moreover, the trial court opined that Appellee 
[J-104-2019] - 27

fell into a subgroup of offenders without “criminal backgrounds, significant life problems, 

or the prognosis typical of offenders.” Id. at 46-47. The research reviewed by the trial 

court revealed that this subgroup has even lower recidivism rates. Id. at 47. 

The court acknowledged this Court’s observations in Muniz that resolution of the 

conflicting evidence regarding recidivism rates was better suited for legislative 

determination. Nevertheless, the trial court opined, 

We have no issue with the Court’s determination that policy is 

within the domain of the Legislature; we take no issue with the 

Legislature’s policy that the protection of the public from 

dangerous sex offender recidivists is a compelling 

government interest. It is the Legislature’s manner of 

implementing that policy, of branding all as evil for the actions 

of a most perverse few, that we reject. Thus, contrary to the 

Commonwealth’s argument that Muniz, supra forecloses any 

further judicial inquiry regarding the constitutionality of 

SORNA, we would respectfully submit that neither our hands, 

nor those of [the Pennsylvania Supreme Court], are so tied. 

Id. at 47. Instead, the trial court opined that, based upon the research presented, “the 

presumption that all sex offenders are dangerous recidivists cannot be universally true.” 

Id. at 47-48.

The court turned to the third prong of the irrebuttable presumption analysis 

concerning whether reasonable alternatives exist to determine which offenders are at 

high risk of recidivating. The court again relied upon the scientific evidence presented by

Appellee in support of his argument that more accurate tools than Revised Subchapter 

H’s tier-based system existed for determining which offenders were at higher risk of 

recidivating and that other treatment programs reduced recidivism more that the 

registration and notification provisions of Revised Subchapter H.

The trial court emphasized that this Court, in J.B., recently determined that 

SORNA’s registration and notification provisions violated juvenile offenders’ right to 
[J-104-2019] - 28

reputation, in part, by concluding that individualized assessment, similar to that utilized 

by the SOAB, provided a reasonable alternative tool to determine the likelihood of 

recidivation. The trial court opined, 

[I]t is no great leap to conclude that the application of 

individualized risk assessments via a pre-deprivation hearing 

for adult offenders is not only possible, but is also actually 

available to the criminal justice system, and constitutes a 

reasonable, more effective alternative for identifying high-risk 

recidivists and reducing sexual re-offending than the 

draconian public shaming/warning procedures so reminiscent 

of colonial-age stocks and scarlet letters, currently in place for 

all adult sexual offenders regardless of risk under [Revised 

Subchapter H].

Tr. Ct. Op. at 49. 

The court rejected the Commonwealth’s argument that the 2018 amendments to 

SORNA resulted in the recidivist presumption being rebuttable because it provided a 

process for offenders to petition the court to be removed from the registration and 

notification requirements of Revised Subchapter H after twenty-five years. The court 

opined that “[a] post-deprivation process that provides for a hearing concerning the 

deprivation of a fundamental right that occurs twenty-five (25) years after the injury is akin 

to the provision of no process at all.” Id. at 50. The court emphasized that during the 

intervening twenty-five years the adult offenders will have been “effectively placed out of 

the job market, ostracized from pro-social resources, and unduly stigmatized for the 

majority of their most productive years.” Id.

Next, the court rejected the suggestion that the underlying trial provided an 

opportunity to contest the application of the registration provisions. The court observed 

that the trial merely provided an opportunity to contest whether the defendant committed 

the crime but did not provide an avenue to contest the applicability of the presumption of 

a high likelihood of recidivation. 
[J-104-2019] - 29

Finding all prongs of the irrebuttable presumption doctrine met, the trial court 

concluded that SORNA’s registration and notification provisions involved an 

unconstitutional irrebuttable presumption on its face and as applied to Appellee. Id. at 

52. A review of the court’s conclusions clearly reveals that the court’s analysis of each of 

the three prongs of the irrebuttable presumption doctrine relies heavily upon the scientific 

evidence presented by Appellee. As noted, the Commonwealth parties awaited this 

appeal to proffer evidence to rebut Appellee’s experts. Given the procedures leading to 

this point, the importance of the underlying issue, and our deference to legislative policy 

determinations, we decline to render a conclusion on the basis of the record before us.

Instead, we conclude that remand is necessary to allow the parties to present additional 

argument and evidence to address whether a scientific consensus has developed to 

overturn the legislative determinations in regard to adult sexual offenders’ recidivation 

rates and the effectiveness of a tier-based registration and notification system as they 

relate to the prongs of the irrebuttable presumption doctrine. See infra at 41-44 for 

additional discussion. 

C. Challenges based upon the trial court’s conclusion that Revised 

Subchapter H’s registration and notification provisions are punitive 

As indicated above, the trial court’s remaining holdings finding Revised Subchapter 

H’s registration and notification provisions unconstitutional are rooted in its determination 

that the provisions are punitive. According to the trial court, if the provisions are punitive, 

then they constitute a part of an offender’s criminal sentence, which in turn is subject to 

the various constitutional and statutory protections alleged by Appellee. Thus, we first 

consider the trial court’s determination that Revised Subchapter H’s registration and 

notification provisions constitute punishment through the application of the Mendoza-
[J-104-2019] - 30

Martinez test. In so doing, we evaluate the degree to which the trial court’s conclusions 

are based upon the scientific evidence presented by Appellee. 

1. Mendoza-Martinez factors

The two-part Mendoza-Martinez inquiry is well established in this Commonwealth: 

“We first consider whether the General Assembly’s ‘intent was to impose punishment, 

and, if not, whether the statutory scheme is nonetheless so punitive either in purpose or 

effect as to negate the legislature’s non-punitive intent.’” Muniz, 164 A.3d at 1208 

(quoting Williams II, 832 A.2d at 971). 

There is no dispute in regard to the first step as the General Assembly has 

repeatedly reenacted the unambiguous statement that the purpose of the registration and 

notification provisions “shall not be construed as punitive.” 42 Pa.C.S. § 9799.11(b)(2). 

Rather, the statute expounds, 

It is the intention of the General Assembly to substantially 

comply with the Adam Walsh Child Protection and Safety Act 

of 2006 and to further protect the safety and general welfare 

of the citizens of this Commonwealth by providing for 

increased regulation of sexual offenders, specifically as that 

regulation relates to registration of sexual offenders and 

community notification about sexual offenders.

Id. § 9799.11(b)(1). 

Indeed, the most recent amendments clarified that in enacting Revised Subchapter 

H and Subchapter I, the General Assembly intended “to address the Pennsylvania 

Supreme Court's decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) and the 

Pennsylvania Superior Court's decision in Commonwealth v. Butler [173 A.3d 1212 (Pa. 

Super. 2017)],” which both deemed the prior iteration unconstitutional based upon a 

finding that the statute was punitive. 42 Pa.C.S. § 9799.11(b)(4). Thus, as did the trial 

court, we accept that the General Assembly’s intent in enacting Revised Subchapter H

was non-punitive.
[J-104-2019] - 31

Accordingly, we turn to the second phase of the Mendoza-Martinez test, which 

considers the following seven factors in determining whether the effect of a statute is

punitive:

(1) Whether the sanction involves an affirmative disability or 

restraint;

(2) Whether it has historically been regarded as a punishment;

(3) Whether it comes into play only on a finding of scienter;

(4) Whether its operation will promote the traditional aims of 

punishment - retribution and deterrence;

(5) Whether the behavior to which it applies is already a crime;

(6) Whether an alternative purpose to which it may rationally 

be connected is assignable for it;

(7) Whether it appears excessive in relation to the alternative 

purpose assigned.

Muniz, 164 A.3d at 1200 (quoting Mendoza-Martinez, 372 U.S. at 168–69) (formatted for 

readability). We emphasize that only the “clearest proof” of punitive effect can override 

the legislature’s stated intent that the statute be construed as non-punitive. Muniz, 164 

A.3d at 1208; Lee, 935 A.2d at 876-77.

As we have found in our recent decisions and as the parties before us agree, 

Factor 3, regarding a finding of scienter, and Factor 5, addressing whether the behavior 

is a crime, provide little weight to the analysis of whether sexual offender registration and 

notification provisions are punitive. Muniz, 164 A.3d at 1214, 1216. This Court in regard 

to Factors 3 and 5, following the United States Supreme Court, has observed that “where 

the concern of a sex offender registration statute like SORNA is protecting the public 

against recidivism, past criminal conduct is ‘a necessary beginning point.’” Id. at 1214 

(quoting Smith, 538 U.S. at 105). Given the agreement that these factors provide little 
[J-104-2019] - 32

guidance in determining whether the statute is punitive, we will not discuss them further 

in this analysis.

a. Factor 1: Whether the sanction involves an affirmative disability or 

restraint

Applying the first Mendoza-Martinez factor, the trial court acknowledged this 

Court’s recent analysis in Muniz. In Muniz, this Court emphasized the distinctions 

between the registration requirements of the then-applicable SORNA and those which 

this Court reviewed in Williams II and that the United States Supreme Court considered 

in Smith. We contrasted the absence of required in-person updates in Smith with 

SORNA, which imposed a minimum of 100 in-person updates in the first twenty-five years 

and likely many more due to updates for changes of address, phone numbers, 

appearance, and other required updates. 

This Court in Muniz additionally rejected the Commonwealth’s attempt to analogize 

the quarterly in-person updates to the monthly counseling sessions for SVPs, which were

deemed non-punitive in Williams II. We distinguished the in-person updates in SORNA

by emphasizing that SORNA’s reporting requirements did not involve any sort of 

counseling to aid the offender in preventing relapse as was the case in Williams II. Thus, 

this Court’s found that the registration and notification provisions of SORNA constituted

an affirmative disability or restraint. Muniz, 164 A.3d at 1211. 

The trial court in the case at bar recognized that the amendments to Revised 

Subchapter H were intended to address the Muniz decision. It observed that the recent 

amendments included a provision which allowed for the substitution of telephonic updates 

for the in-person quarterly and semiannual updates for Tier II and III offenders who 

complied with all registration requirements for the first three years and met other 

requirements. The court also acknowledged that an offender could petition to be relieved 
[J-104-2019] - 33

of the registration requirements after twenty-five years. The trial court opined that the 

reduction in registration requirements from SORNA to Revised Subchapter H was “largely 

ephemeral” as the offender remains “for all intents and purposes, on probation for the 

entirety of their lives, with all the regulation, control, and sundering of privacy that such 

status entails.” Tr. Ct. Op. at 61.20 It additionally opined that the provision for review after 

twenty-five years was “illusory and akin to no post-deprivation process at all.” Appellee 

Brief at 62. It, therefore, concluded that this factor weighed in favor of finding Revised 

Subchapter H’s requirements punitive. 

We acknowledge that the court’s analysis of this factor does not overtly rely upon 

Appellee’s scientific evidence. Nevertheless, the trial court’s recounting of the impact of 

the registration updates and the publication of the relevant data are to some extent 

informed by the expert’s evidence of the negative effects of registration on sexual 

offenders, as discussed in more detail in regard to other factors below. Accordingly, in 

balancing all of the factors, the court may have weighed this factor more heavily as 

punitive because of the court’s acceptance of Appellee’s expert evidence. Therefore, we 

find it appropriate for the trial court to reevaluate this factor after a full hearing on the 

scientific evidence.

b. Factor 2: Whether it has historically been regarded as a punishment

 

20 The trial court expressively emphasized the imposition on the offender: 

They cannot change their address without reporting it to the 

police. They cannot begin school or switch schools without 

notifying the police. They cannot buy a new car without 

informing the police. Nor can they take a new job without 

reporting it to the police, so that this fact, along with the rest 

of the personal aspects of their lives, can be further 

disseminated to anyone in the world via the Internet.

Tr. Ct. Op. at 61.
[J-104-2019] - 34

In Muniz, this Court opined that the registration and notification provisions of 

SORNA were comparable to the established punitive measures of probation and 

shaming. We again distinguished the United States Supreme Court’s 2003 analysis of 

registration provisions in Smith, observing that the “technological environment” had 

changed in the years between 2003 and 2017 such that the shaming aspect of the 

registration provisions differed dramatically. Muniz, 164 A.3d at 1212. While Smith had 

distinguished colonial era shaming from Alaska’s 2003 online registry by emphasizing 

that shaming depended on face-to-face ostracism by the community, this Court 

recognized that the current technology and social media usage created a world in which 

“[y]esterday’s face-to-face shaming punishment can now be accomplished online.” Id. 

(quoting Commonwealth v. Perez, 97 A.3d 747, 765-66 (Pa. Super. 2014)). 

We additionally opined that the in-person reporting requirements of SORNA, as 

distinguished from the statute reviewed in Smith, resembled the periodic meetings 

imposed upon those on probation and similarly included the threat of incarceration for 

failure to abide by the reporting requirements. This Court concluded that these attributes 

of SORNA weighted this factor toward finding the statute punitive. Id. at 1213.

The trial court in the case at bar concluded that “nothing about the [Revised 

Subchapter H] amendments to SORNA alters” this Court’s analysis in Muniz. Tr. Ct. Op. 

at 65. It opined that Revised Subchapter H’s “slightly ameliorated in-person appearances 

do not change the global nature of the public shaming or the intensity of the probationarystyle onus on the offender.” Id. It, therefore, found this factor also weighed in favor of 

viewing Revised Subchapter H as punitive in nature.

We recognize that, similar to Factor 1, the trial court’s analysis of this factor does 

not specifically draw upon the scientific evidence presented by Appellee. Instead, it is 

reliant upon the analysis in Muniz. Nevertheless, we recognize that the expert evidence 
[J-104-2019] - 35

addressing the effects of the registry on offenders may have altered the trial court’s 

assessment of the degree to which the online public registry is akin to public shaming and 

probation. As with the first factor, we conclude that consideration of the scientific 

evidence presented on remand may alter the trial court’s weighting of this factor. 

c. Factor 4: Whether its operation will promote the traditional aims of 

punishment - retribution and deterrence

In Muniz, we distinguished SORNA’s provisions from the Megan’s Law II 

provisions addressed in Williams II. While the criminal offenses involved in Megan’s Law 

II were generally serious crimes where the deterrent effect of registration paled in 

comparison to the substantial incarceration terms, we emphasized that SORNA’s 

registration provisions applied to a much wider range of offenses, many of which carried

minimal terms of incarceration.21 We concluded that the registration and notification 

provisions, therefore, entailed a more significant deterrent effect in SORNA than in past 

iterations. 

 

21 Specifically, we pointed to following predicate offenses that could be graded as 

misdemeanors:

interference with custody of children, 18 Pa.C.S. § 2904; 

luring a child into a motor vehicle or structure, 18 Pa.C.S. 

§ 2910; indecent assault, 18 Pa.C.S. § 3126(a)(1) - (6), (8); 

invasion of privacy, 18 Pa.C.S. § 7507.1(b); and obscene and 

other sexual materials and performances, 18 Pa.C.S. 

§ 5903(a)(3)(ii), (4)(ii), (5)(ii), (6). SORNA predicate offenses 

that may have a maximum incarceration term of two years or 

less under federal law are as follows: video voyeurism, 18 

U.S.C. § 1801; misleading domain names on the internet, 18 

U.S.C. § 2252B; and abusive sexual conduct, 18 U.S.C. 

§ 2244.

Muniz, 164 A.3d at 1215 n.20.
[J-104-2019] - 36

We also concluded in Muniz that the retributive aspects of the registration 

provisions were greater than in the sexual offender registration provisions reviewed in 

Smith or Williams II, observing that “SORNA has increased the length of registration, 

contains mandatory in-person reporting requirements, and allows for more private 

information to be displayed online.” Muniz, 164 A.3d at 1216. Given the increased 

deterrent and retributive aspects of SORNA as compared with prior statutes, we 

concluded that this factor weighed more heavily in favor of finding the provisions to be 

punitive. Id.

In the case at bar, the trial court concluded that the analysis of this factor in Muniz

controlled as “[t]he Act 10 amendments to SORNA did nothing to alter the deterrent and 

retributive effects of the pre-amendment Act.” Tr. Ct. Op. at 68. It emphasized that 

Revised Subchapter H “still requires lengthy, often lifetime, registration, still requires inperson registration, places onerous reporting burdens on offenders, and allows very 

private information to be published worldwide over the Internet.” Id. at 68-69. The trial 

court supported this analysis by additionally questioning the legitimacy of the 

Commonwealth’s asserted goal of protecting the public from sexual offender recidivation. 

In addressing this factor, the court explicitly referenced the scientific evidence presented

by Appellee indicating that sexual offender registries are ineffective. Id. at 67. 

While this factor could arguably be addressed solely by comparing the provisions 

of the current Revised Subchapter H to those of SORNA analyzed in Muniz, the trial 

court’s analysis demonstrates its consideration of the effectiveness of sexual offender 

registries in addressing this factor. As with the other factors, we conclude that the court’s 

analysis of this factor also favors remanding for further consideration in light of any 

additional scientific evidence.
[J-104-2019] - 37

d. Factor 6: Whether an alternative purpose to which it may rationally be 

connected is assignable for it

The appellant in Muniz conceded that the sixth Mendoza-Martinez factor weighed 

in favor of finding SORNA non-punitive when he agreed that there was a rational 

connection between the sexual offender registration and notification provisions and public 

safety. This Court, nevertheless, addressed this issue based upon the claims raised by 

an amicus curiae in the case, contesting the rationality of the connection. The amicus 

cited scientific evidence that “most offenders will not commit another sexual offense,” that 

“SORNA therefore produces an illusion of security from stranger perpetrators when the 

majority of sexual crimes are committed by someone known to the victim[;]” and that 

“SORNA diverts law enforcement efforts away from the most serious offenders and from 

effective methods of crime control and treatment.” Muniz, 164 A.3d at 1216. The 

Commonwealth’s amicus curiae, in turn, cited contrary scientific evidence allegedly 

supporting the legislative presumption that sexual offenders pose a high likelihood of 

recidivation. 

In response to these arguments of amici in Muniz, this Court, understandably, 

concluded that the evidence was not sufficient to overturn the legislative finding that 

“[s]exual offenders pose a high risk of committing additional sexual offenses and 

protection of the public from this type of offender is a paramount governmental interest.” 

Id. at 1217 (quoting 42 Pa.C.S. § 9799.11(a)(4)). We additionally observed that “the 

General Assembly legislated in response to a federal mandate based on the expressed 

purpose of protection from sex offenders.” Id.

As has been repeatedly quoted by the Commonwealth parties in this case, we 

additionally opined: 

We recognize there are studies which find the majority of 

sexual offenders will not re-offend, and that sex offender 
[J-104-2019] - 38

registration laws are ineffective in preventing re-offense; we 

also recognize there are studies that reach contrary 

conclusions. In this context, we find persuasive [the] 

argument that policy regarding such complex societal issues, 

especially when there are studies with contrary conclusions, 

is ordinarily a matter for the General Assembly. See e.g., 

Commonwealth v. Hale, [128 A.3d 781, 785 (Pa. 2015)] 

(where “substantial policy considerations” are involved “such

matters are generally reserved . . . to the General Assembly”). 

Id. at 1217. We continued reasoning that “[a]though there are contrary scientific studies, 

we note there is by no means a consensus, and as such, we defer to the General 

Assembly's findings on this issue.” Id. Accordingly, we concluded that “there is a purpose 

other than punishment to which the statute may be rationally connected and this factor 

weighs in favor of finding SORNA to be nonpunitive.” Id. 

In regard to the sixth factor, the trial court acknowledged this Court’s analysis in 

relation to SORNA. The trial court, however, respectfully concluded that “the evidence 

presented in court on July 9, 2018, gives rise to serious concerns about the rationality of 

[Revised Subchapter H’s] connection to its alleged non-punitive purpose.” Tr. Ct. Op. at 

70. The court instead concluded that the connection between the registration 

requirements and the intended purpose of public protection was “anything but rational.” 

Id. It, therefore, weighed this factor in favor of finding the statute punitive. Nevertheless,

acknowledging that this Court could conclude otherwise based on Muniz, it opined that it 

would still find Revised Subchapter H’s requirements punitive even if the sixth factor was 

weighted as non-punitive. 

Even though the trial court expressly limited the impact of this factor on its eventual 

balancing of the seven factors, it cannot be disputed that the trial court’s evaluation of the 

Appellee’s experts’ evidence affected its view of the case. Indeed, it expressly references 

its evaluation of this factor in its consideration of Factor 7. Thus, the trial court’s analysis 

of this factor also counsels in favor of a remand to develop the record. 
[J-104-2019] - 39

e. Factor 7: Whether it appears excessive in relation to the alternative 

purpose assigned.

This Court in Muniz recognized that it had expressed hesitation concerning this 

factor in Williams II regarding the absence of any procedure by which, in that case, an

SVP could later assert that he or she no longer posed a danger to the public. Notably, 

however, the SVP determination process in Williams II entailed an initial individualized 

assessment of risk of danger. In contrast, we recognized in Muniz that “SORNA 

categorizes a broad range of individuals as sex offenders subject to its provisions, 

including those convicted of offenses that do not specifically relate to a sexual act.” Muniz

164 A.3d at 1218. We, therefore, concluded that “SORNA's requirements are excessive 

and over-inclusive in relation to the statute's alternative assigned purpose of protecting 

the public from sexual offenders.” Id. 

The trial court recited our analysis in Muniz and opined that Revised Subchapter 

H “has no impact on the concerns raised by [this Court] with respect to this factor.” Tr. 

Ct. Op. at 71. Referencing back to its conclusions regarding Factor 6, the court continued 

that this Court’s conclusion regarding the excessiveness factor in Muniz “is even more 

compelling when the rationality of SORNA’s relationship to its professed non-punitive 

purpose is deconstructed and debunked.” Id. at 71. Thus, the trial court’s evaluation of 

this factor is also tied to the strength of Appellee’s scientific evidence, which may require 

reevaluation following the presentation of any additional scientific evidence on remand. 

f. Balancing of Factors

Weighing the factors in Muniz, this Court concluded that all of the relevant factors, 

other than Factor 6, weighed “in favor of finding SORNA to be punitive in effect despite 

its expressed civil remedial purpose.” Muniz, 164 A.3d at 1218. Specifically, we held that 

“SORNA involves affirmative disabilities or restraints, its sanctions have been historically 
[J-104-2019] - 40

regarded as punishment, its operation promotes the traditional aims of punishment, 

including deterrence and retribution, and its registration requirements are excessive in 

relation to its stated nonpunitive purpose.” Id. 

Likewise, weighing all the factors, the trial court in the case at bar opined that the 

balancing applied in Muniz was applicable to Revised Subchapter H such that it “is still 

sufficiently punitive in effect to overcome the General Assembly's stated non-punitive 

purpose.” Tr. Ct. Op. at 72. The court additionally reasserted, that while not determinative 

of its balancing of factors, it would nevertheless weigh Factor 6 more heavily in favor of 

finding Revised Subchapter H punitive because it did “not consider SORNA to be 

rationally connected to any legitimate non-punitive purpose because of the evidence 

presented before [it] on July 9, 2018.” Id.

We observe that the scientific evidence presented by Appellee during the postsentence motion arguably influenced the trial court’s consideration of all five relevant

factors and overtly drove the analysis of three. Accordingly, we conclude that its labeling 

of Revised Subchapter H as punitive was impacted by its assessment of Appellee’s expert 

evidence such that reevaluation of the balancing of the seven Mendoza-Martinez factors 

is appropriate following presentation of additional scientific evidence on remand.

The trial court’s conclusion that Revised Subchapter H is punitive inevitably 

resulted in the court’s determination that the registration requirements were part of 

Appellee’s criminal sentence, and thus, subject to the various constitutional and statutory 

protections. Evaluating each challenge raised by Appellee, the trial court concluded that 

(1) Revised Subchapter H violated the dictates of Apprendi and Alleyne because it

subjected offenders to increased registration provisions without a jury determining that

the offender posed a risk of future dangerousness beyond a reasonable doubt; (2) the 

registration periods constituted illegal sentences in excess of the statutory maximum 
[J-104-2019] - 41

terms of incarceration; (3) the provisions resulted in an excessive sentence in violation of 

the federal and state constitutional provisions related to cruel and unusual punishments; 

and (4) Revised Subchapter H violated the separation of powers doctrine by 

“encroach[ing] upon the judiciary’s fact-finding and individualized sentencing 

responsibilities.” Tr. Ct. Op. at 78. As these holding flow from the trial court’s 

determination that Revised Subchapter H is punitive, they too should be reevaluated 

following remand.

V. Conclusion

It is abundantly clear that the trial court’s various declarations of Revised 

Subchapter H’s registration and notification provisions as unconstitutional derived directly 

from the court’s acceptance of and reliance upon Appellee’s experts’ evidence 

challenging the legislative determinations underpinning Revised Subchapter H, 

specifically (1) that all sexual offenders pose a high risk of recidivation and (2) that the 

tier-based registration system of Revised Subchapter H protects the public from the 

alleged danger of recidivist sexual offenders.

Unfortunately, the procedural posture of this case prevents tidy resolution of the

matter by this Court. While Appellee presented a colorable argument that the General 

Assembly’s factual presumptions have been undermined by recent scientific studies, we 

are unable to affirm the trial court’s several conclusions finding Revised Subchapter H 

unconstitutional. We note that the evidence of record does not demonstrate a consensus 

of scientific evidence as was present to find a presumption not universally true in J.B.,

107 A.3d 17-19, nor the “clearest proof” needed to overturn the General Assembly’s 

statements that the provisions are not punitive, which we have noted “requires more than 

merely showing disagreement among relevant authorities,” Lee, 935 A.2d at 885. We 

hesitate to find these standards met by the stipulated admission of three experts’
[J-104-2019] - 42

affidavits, without an opportunity to weigh this evidence against contrary evidence, if any 

exists.

22

 

22 The Dissent in favor of affirmance frames this remand as “forgiv[ing]” the 

Commonwealth and providing it an “excuse” by imposing “a heavy burden” on Appellee

challenging the constitutionality of Revised Subchapter H. Dissenting Op. at 2 (Donohue, 

J., dissenting). Respectfully, it is not an excuse but our constitutional duty to impose that 

burden in order to uphold the separation of powers between this Court and the General 

Assembly. Indeed, as detailed above, we defer policy making determinations to the 

legislative branch absent a challenger’s demonstration that those determinations result in 

a statute that clearly, palpably and plainly violates the constitutional rights of citizens. 

Shoul, 173 A.3d at 678. For the reasons set forth above, we conclude that the current 

record does not meet that burden and accordingly remand for further determinations. 

Rather than remanding, the Dissent in favor of affirmance independently examines the 

scientific evidence cited by the Commonwealth and determines that it supports the 

conclusion that prior precedents have been mistaken regarding the high rates of 

recidivism relied upon to support sexual offender laws. Dissenting Op. at 2 (Donohue, J., 

dissenting). As support, the Dissent correctly quotes the study referenced by the 

Commonwealth as acknowledging “a substantial gulf between the sexual recidivism rates 

observed in the empirical studies and the rates supposed by the laity and endorsed by 

the [United States] Supreme Court.” Id. at 16 (quoting Scurich at 4). 

The authors of the study, however, do not concede the validity of that gap in terms of 

actual recidivism as opposed to the recidivism observed in some studies. Instead, without 

endorsing a specific reoffense rate or taking a “position on the propriety of sexual offender 

legislation[,]” they nevertheless “question challenges to that legislation to the extent [the 

challenges] are based on current empirical assertions that sexual offender recidivism is 

‘low.’” Scurich at 4. The paper then sets forth various factors of the empirical studies, 

such as those relied upon by Appellee, that underestimate the recidivism rate of sexual 

offenders.

We generally agree with the Dissent’s analysis that “the relevant question should not be 

whether convicted sexual offenders are committing unreported sexual crimes, but rather 

whether sexual offenders commit more sexual crimes than other groups not subject to 

similar registration laws.” Dissenting Op. at 18 (Donohue, J., dissenting). We respectfully 

disagree, however, with the Dissent’s conclusion that the legislature’s finding that sexual 

offenders pose a higher risk of recidivation has “been debunked,” id, to such a degree as 

to justify overturning the legislature’s policy determination that “[s]exual offenders pose a 

high risk of committing additional sexual offenses and protection of the public from this 

type of offender is a paramount governmental interest.” 42 Pa.C.S. § 9799.11(a)(4).
[J-104-2019] - 43

However, reversal is likewise inappropriate because it was the Commonwealth’s 

tactics at the post-sentence hearing that potentially prevented the necessary 

development of the record. As noted, the Commonwealth forwarded an argument that 

the trial court did not have authority to overturn the legislative policy determinations based 

upon the proffered scientific evidence, an argument we refuted in J.B. and continue to 

reject today. As stated above, the courts of this Commonwealth have the inherent 

authority as a co-equal branch to strike legislative acts if they violate the rights protected 

by our Constitutions. J.B., 107 A.3d at 14 (citing Nixon v. Com. Dept. of Pub. Welfare, 

839 A.2d 277, 286 (Pa. 2003)).

We recognize that the Commonwealth parties relied upon our recent statement in 

Muniz, 164 A.3d at 1217, rejecting similar expert evidence calling into question the 

legislature’s assessment of sexual offender recidivism risks and the effectiveness of tierbased registration systems. In light of this reliance, we emphasize that all cases are 

evaluated on the record created in the individual case. Thus, a court need not ignore new 

scientific evidence merely because a litigant in a prior case provided less convincing 

evidence. Indeed, this Court will not turn a blind eye to the development of scientific 

research, especially where such evidence would demonstrate infringement of 

constitutional rights. 

Nevertheless, we also emphasize that it will be the rare situation where a court 

would reevaluate a legislative policy determination, which can only be justified in a case 

 

Instead, we deem it prudent to remand for further hearing to allow the parties to proffer 

evidence and argument regarding whether Appellee’s scientific evidence sufficiently 

undermines the fact-finding foundation of the legislative policy determinations. As 

discussed above, we emphasize that the present case is distinguishable from J.B., where 

the research presented by the juvenile defendants was corroborated by a growing body 

of caselaw which emphasized the rehabilitative aspects of juveniles and the distinctions 

between adult and juvenile offenders generally, see supra at 14-15.
[J-104-2019] - 44

involving the infringement of constitutional rights and a consensus of scientific evidence 

undermining the legislative determination. We reiterate that while courts are empowered 

to enforce constitutional rights, they should remain mindful that “the wisdom of a public 

policy is one for the legislature, and the General Assembly's enactments are entitled to a 

strong presumption of constitutionality rebuttable only by a demonstration that they 

clearly, plainly, and palpably violate constitutional requirements.” Shoul, 173 A.3d at 678. 

As is apparent from the trial court findings, the evidence presented by Appellee

provides a colorable argument to debunk the settled view of sexual offender recidivation 

rates and the effectiveness of tier-based sexual offender registration systems underlying

the General Assembly’s findings as well as various decisions of this Court and the United 

States Supreme Court. Nevertheless, as the trial court did not have the benefit of the 

opposing science, if any, the evidence currently in the record does not provide a sufficient 

basis to overturn the legislative determination. Accordingly, we conclude that the proper 

remedy is to remand to the trial court to provide both parties an opportunity to develop 

arguments and present additional evidence and to allow the trial court to weigh that

evidence in determining whether Appellee has refuted the relevant legislative findings 

supporting the challenged registration and notification provisions of Revised Subchapter 

H. 

Accordingly, we vacate that portion of the trial court’s order declaring the 

registration requirements of Revised Subchapter H of SORNA unconstitutional and 

remand for further proceedings in accordance with this opinion.

Justices Todd, Dougherty and Wecht join the opinion.

Justice Donohue files a dissenting opinion.

Justice Mundy files a dissenting opinion in which Chief Justice Saylor joins.