J-A06022-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TYLER WILLIAM HERNDON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 588 WDA 2021

Appeal from the Judgment of Sentence Entered March 30, 2021

In the Court of Common Pleas of Mercer County 

Criminal Division at No(s): CP-43-CR-0000569-2019

BEFORE: MURRAY, J., SULLIVAN, J., and COLINS, J.*

MEMORANDUM BY SULLIVAN, J.: FILED: JULY 25, 2022

Tyler William Herndon (“Herndon”) appeals from the judgment of 

sentence imposed after a jury convicted him of involuntary deviate sexual 

intercourse, strangulation, unlawful restraint, indecent assault, simple 

assault, and recklessly endangering another person.

1

 We affirm. 

We summarize the factual history of this appeal from the trial transcript. 

Herndon and T.O. began communicating over Facebook in November 2018.

N.T., 10/19/20-10/20/20, at 117-18. They first met in person in March 2019, 

when their children, who were friends, had a play date. See id. Herndon and 

T.O. exchanged text messages about their children, fashion, and relationships. 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3123(a)(1), 2718(a)(1), 2902(a)(1), 3126(a)(1), (2), 

2701(a)(1), 2705. 
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The day after the play date, T.O. went to Herndon’s home with her children 

and helped Herndon with his computer. See id. at 48. According to T.O., 

Herndon slammed her head against a wall and choked her until one of her 

children interrupted by asking for something. See id. at 48-49. That evening, 

T.O. texted Herndon and wished him a good night. See id. at 102.

The following day, March 17, 2019, Herndon and T.O. continued to text 

each other, and T.O. arranged to meet him. See id. at 51-52 T.O. related 

that she told her mother, with whom she lived, that she was going to do

laundry. See id. Herndon picked up T.O. and drove her to his home, where 

she helped him with his computer and did her laundry. See id. at 52-53. T.O.

stated that she was working on the computer when Herndon told her he 

bought her some clothes, which he had left in his bedroom. See id. at 53-

54.

T.O. went to the bedroom and tried on two pairs of pants, while Herndon 

was elsewhere in the home. See id. at 56-58. According to T.O., the lights 

suddenly went out in the bedroom while she was trying on the clothes and she 

found that Herndon was behind her. See id. at 58. He grabbed her wrists

and bound them together behind her back. See id. at 59-60. He then pushed 

her face down onto the bed and bound her wrists to her ankles. See id. at 

60. He put a collar with a chain around her neck, a mask on her face, and a 

metal ring in her mouth. See id. at 60-61. Herndon vaginally penetrated her

with several objects and then his penis, and used the chain and collar, as well 
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as his hands, to choke her to near unconsciousness. See id. at 63, 65-69. 

Despite the metal ring in her mouth, T.O. managed to scream out for Herndon 

to stop. See id. at 69-70. 

Herndon eventually stopped, untied T.O.’s right hand and ankle, and left 

the bedroom. See id. at 70. T.O. removed the rest of the restraints, got 

dressed, gathered her laundry, and told Herndon she was leaving. See id. at 

72-73. She then waited in Herndon’s car until he came out and drove her to 

her mother’s house. See id. at 73.2 

T.O. was visibly distraught. See id. at 173. When her mother sought

to determine why she was upset, T.O. disclosed that Herndon had raped her. 

T.O. had a friend take her to the hospital approximately two hours after she 

returned home. At the hospital, sexual assault nurse examiner (“SANE 

Nurse”) Kelly Williamson examined her, and Pennsylvania State Trooper 

Zachary Julien interviewed her.

Trooper Julien obtained a search warrant for Herndon’s home. When he 

executed the warrant the next day, he recovered items consistent with T.O.’s 

descriptions, i.e., a used condom, lubricant, restraints, a collar, chains, a 

metal ring with straps, and sex toys. See id. at 243-44, 247. Testing 

revealed T.O.’s DNA on the sex toys. See N.T., 10/21/20-10/22/20, at 9 

(indicating that the parties stipulated to the admission of a DNA report); see 

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2 T.O. did not have a driver’s license. See N.T., 10/19/20-10/20/20, at 52.
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also id. at 74 (indicating that Herndon conceded that T.O.’s DNA was on the 

sex toys). Trooper Julian arrested Herndon. Herndon was charged with 

numerous offenses relating to the sexual assault. 

At trial, T.O. testified that Herndon had physically assaulted her the day 

before the sexual assault, but that she continued to text him. She explained 

that she thought Herndon was “odd,” but a “nice guy,” and that she wanted 

to be “nice.” N.T., 10/19/20-10/20/20, at 46, 94. T.O.’s mother and friend 

both testified that T.O. told them Herndon had raped her; T.O.’s mother stated 

when T.O. first returned home, she was shaking and obviously traumatized. 

See id. at 173. Herndon called an expert in forensic nursing to testify that 

nothing in the SANE report supported the victim’s reports to SANE Nurse 

Williamson and Trooper Julian of being sexually assaulted. The jury convicted

Herndon of the above-stated offenses.3 

On March 30, 2021, the trial court sentenced Herndon to serve an 

aggregate term of seven years and two months to seventeen and-one-half

years in prison.

4

 The court noted that the Sexual Offender Assessment Board 

had determined that Herndon was not a sexually violent predator. Herndon’s 

counsel asserted that he had advised Herndon of his sexual offender 

registration requirement for committing a tier III offense pursuant to the 

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3 The jury found Herndon not guilty of rape and aggravated assault. 

4 The trial court’s initial sentencing order, which it later corrected, erroneously 

stated that its maximum sentence was nineteen years. 
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Sexual Offender Registration and Notification Act (“SORNA”). See 42 

Pa.C.S.A. § 9799.14(d)(4) (designating involuntary deviate sexual intercourse 

as a tier III offense). Herndon timely filed post-sentence motions challenging, 

in part, the weight of the evidence. The trial court denied Herndon’s weight 

claim. Herndon timely appealed, and both he and the trial court complied with 

Pa.R.A.P. 1925. 

Herndon raises the following issues for review:

1. Whether [the] [t]rial [c]ourt erred and abused its discretion by 

denying Mr. Herndon’s post-sentence motion for a new trial 

challenging the weight of the evidence . . . [where] the victim’s 

testimony was unreliable and untrustworthy, as it was riddled 

with inconsistencies and a lack of corroboration.

2. Whether [t]rial [c]ourt err[ed] and committed a mistake of law 

by imposing an illegal sentence by subjecting Mr. Herndon to 

automatic lifetime registration under Subchapter H of 

SORNA/ACT 10 . . ..

Herndon’s Brief at 7-8. 

Herndon’s first issue contests the trial court’s denial of his weight of the

evidence claim, which implicates the following legal principles governing our 

review. A motion for a new trial based on the weight of the evidence is 

directed to the discretion of the trial court, whose role is to determine whether 

certain facts are so clearly of greater weight that to ignore them or give them 

equal weight denies the defendant justice. See Commonwealth v. Rivera, 

983 A.2d 1211, 1225 (Pa. 2009) (citation omitted). However, the trial court 

does not sit as a “thirteenth juror,” and should not grant a new trial because 

of mere conflicts in the evidence or because the court would have reached a 
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different conclusion than the jury on the same facts. Commonwealth v. 

Widmer, 744 A.2d 745, 752 (Pa. 2000). “The weight of the evidence is 

exclusively for the finder of fact, who is free to believe all, none or some of 

the evidence and to determine the credibility of the witnesses.” 

Commonwealth v. Cramer, 195 A.3d 594, 600 (Pa. Super. 2018) (citation 

omitted). Thus, a trial court addressing a weight of the evidence claim 

assesses whether the verdict was so contrary to the evidence as to shock 

one’s sense of justice. See Commonwealth v. Clay, 64 A.3d 1049, 1055

(Pa. 2013). 

An appellate court reviews whether the trial court abused its discretion

when it denied a weight of the evidence claim; it does not assess the 

underlying question of whether the verdict is against the weight of the 

evidence. See id. at 1054. This Court gives the gravest consideration to the 

trial court’s findings and reasons when reviewing the determination that the 

verdict is against the weight of the evidence because the trial judge had the 

opportunity to observe all of the evidence presented at trial. See id. If the 

record adequately supports the trial court’s decision to reject a weight of the 

evidence claim, the trial court has acted within its judicial discretion. See 

Brown, 648 A.2d at 1190. See also Commonwealth v. Fuentes, 272 A.3d 

511, 517 (Pa. Super. 2022) (noting that trial court’s weight of the evidence 

determination is one of the least assailable reasons for granting or denying a 

new trial). 
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Herndon argues that the trial court abused its discretion because T.O.’s 

behaviors and communications with him before, during, and after the sexual 

assault on March 17, 2019, “severely undercut her credibility.”5 Herndon’s 

Brief at 19, 22. Specifically, Herndon asserts that T.O.: (1) continued to

engage in “flirty banter” with him even after he allegedly physically assaulted 

her the day before the sexual assault; (2) “lie[d]” to her mother to meet with 

Herndon alone on March 17th out of fear that her mother would “slut shame” 

her; and (3) did not immediately run away from Herndon’s home or call 911 

after the sexual assault but rather finished her laundry and then waited for 

Herndon to drive her home before reporting the sexual assault to her mother. 

Id. at 20-23. Herndon adds that T.O. told her friend that the clothes Herndon 

asked her to try on were “sexy.” Id. at 22. Finally, he asserts that the SANE 

report revealed no physical injuries to T.O.’s ankles, wrists, neck, or vagina to 

corroborate her testimony that he bound, choked, and penetrated with foreign 

objects. 

The trial court rejected Herndon’s weight of the evidence claim. It 

stated that its conscience was in no way shocked by the verdicts in light of 

“the victim’s credibility, the subsequent investigation and resulting evidence, 

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5

In his appellate brief, Herndon does not specify the crime or element of that 

crime about which T.O. was purportedly not credible. At trial, the defense 

conceded that Herndon and T.O. had sex and argued to the jury that “[t]he 

only issue you have to decide is whether or not it was consensual.” N.T., 

10/19/20-10/20/20, at 74. 
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the extensive communications between [Herndon] and [T.O.], the findings of 

DNA evidence which corroborated the testimony, and the testimony of other 

individuals to the state of [T.O.] subsequent to the incident.” Trial Court 

Opinion, 7/2/15, at 15. 

The record supports the trial court’s rejection of Herndon’s weight claim. 

T.O.’s testimony about the sexual assault was unwavering. See N.T., 

10/19/20-10/20/20, at 58-70. Her account of being restrained, strangled, 

and penetrated by foreign objects was corroborated by the physical evidence 

recovered from Herndon’s home and from DNA testing, and her mother’s 

testimony about her distress after the sexual assault. It was within the 

province of the jury to reject Herndon’s assertions that her contact with him 

after the physical assault the day before the sexual assault “severely undercut 

her credibility.” See Cramer, 195 A.3d at 600 (reiterating that the finder of 

fact is free to believe all, none or some of the evidence and to determine the 

credibility of the witnesses). Thus, because the record supports the trial 

court’s reasoning, we conclude that the trial court acted within its discretion

when denying Herndon’s weight claim. 

Herndon next asserts that his SORNA registration requirement

constitutes an illegal sentence and violates his constitutional rights.

An illegal sentence claim cannot be waived. See Commonwealth v. 

Thorne, --- A.3d ---, ---, 2022 WL 2231821, at *3 (Pa. June 22, 2022). 

Challenges to the legality of a sentence involve a narrow category of claims
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that the trial court lacked the authority to impose a sentence, including that 

the sentence imposed: (1) fell outside the legal parameters prescribed by the 

applicable statute; (2) implicated merger or double jeopardy concerns; (3) 

violated the rules in Apprendi v. New Jersey, 530 U.S. 466 (2000), or 

Alleyne v. United States, 570 U.S. 99 (2013);

6 or (4) involved cruel and 

unusual punishments. See Commonwealth v. Lawrence, 99 A.3d 116, 

122-23 (Pa. Super. 2014). The standard of review of constitutional challenges 

to SORNA II and related illegal sentencing claims is de novo, and the scope of 

review is plenary. See Commonwealth v. Torsilieri, 232 A.3d 567, 575 

(Pa. 2020); Commonwealth v. Bickerstaff, 204 A.3d 988, 995 (Pa. Super. 

2019). 

It is well settled that a statute is presumed to be constitutional and that 

the party seeking relief has a heavy burden of showing that the statute clearly, 

palpably, and plainly violates the constitution. See Commonwealth v. 

Manzano, 237 A.3d 1175, 1180 (Pa. Super. 2020); see also Torsilieri, 232 

A.3d at 589 (emphasizing that “only the ‘clearest proof’ of punitive effect can 

override the legislature’s stated intent that the statute be construed as non-

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6 Apprendi holds that except for prior convictions, a “fact that increases the 

penalty for a crime beyond the prescribed statutory maximum must be 

submitted to a jury[ ] and proved beyond a reasonable doubt.” Apprendi, 

530 U.S. at 490. Alleyne held that the rule in Apprendi applies with equal 

force to facts increasing a mandatory minimum sentence. Alleyne, 570 U.S. 

at 112. 
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punitive.”) (citation omitted). Additionally, the threshold question in

establishing whether a sex offender registration statute imposes a cruel and 

unusual sentence, violates Apprendi, or permits a sentence beyond a 

statutory maximum, is whether the statute is punitive. See Commonwealth 

v. Butler, 226 A.3d 972, 987 (Pa. 2020). 

By way of further background, in response to our Supreme Court finding

that a former version of SORNA (“SORNA I”) was an unconstitutional ex post 

facto punishment, see Commonwealth v. Muniz, 164 A.3d 1189, 1223 (Pa. 

2017) (plurality), our General Assembly passed Acts 10 and 29 of 2018 

(“SORNA II”). SORNA II amended SORNA I to include revised Subchapter H, 

which governs offenses, like the current one, committed after December 2012. 

revised Subchapter H contains the legislature’s findings that its provisions are 

nonpunitive and that sexual offenders “pose a high risk of committing 

additional sexual offenses . . ..” 42 Pa.C.S.A. § 9799.11(a)(1), (4).

Our Supreme Court has yet to rule definitively on the constitutionality 

of revised Subchapter H or determine whether it is punitive. See Thorne, 

2022 WL 2231821, at *5 (stating that “[t]he question of whether the lifetime 

registration requirement of [r]evised Subchapter H is punitive in nature and, 

therefore, part of [Thorne’s] criminal sentence subject to various 

constitutional protections applicable to criminal sentences currently remains 

open.”). In Torsilieri, however, our Supreme Court vacated a trial court 

order finding that revised Subchapter H violated a sexual offenders’ right to 
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reputation by creating an irrebuttable presumption7 of recidivism and future 

dangerousness and that the statute was punitive. See Torsilieri, 232 A.3d 

at 587-88, 596. The Court concluded that Torsilieri posed a “colorable”

constitutional challenge to revised Subchapter H by presenting research that 

sex offender recidivism rates are improperly exaggerated and that the 

registration system increases rather than decreases the danger to the public. 

See id. at 584-85. The Torsilieri Court, however, remanded to the trial court 

for further consideration of whether there was a “scientific consensus” 

necessary to overturn the legislature’s findings concerning recidivism and the 

effectiveness of the registration and notification provisions of revised 

Subchapter H, and to reevaluate whether the statute is punitive in light of 

additional scientific evidence on remand. See id. at 587-88, 596.

In this appeal, Herndon asserts that revised Subchapter H: (1) contains 

an irrebuttable presumption that sexual offenders pose a high risk of 

recidivism, which violates his due process rights; (2) is punitive, thereby 

inflicting a cruel and unusual punishment and implicating Apprendi concerns; 

and (3) imposes a registration requirement, which constitutes a “lifetime 

sentence . . . greater than the lawful maximum for a conviction of the offense” 

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7 A party claiming an unconstitutional irrebuttable presumption 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.” Torsilieri, 

232 A.3d at 579 (citation omitted). 
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for which he was found guilty. Herndon’s Brief at 28, 31.8 Although Herndon 

did not raise this challenge until filing a Pa.R.A.P. 1925(b) statement, we will 

address the constitutional and statutory claims to the extent they implicate 

legality of sentences claims. See Thorne, 2022 WL 2231821, at *4 (Pa. June 

22, 2022) (concluding that Thorne did not waive Apprendi and cruel and 

unusual punishment challenges to Subchapter H by failing to raise them in the 

trial court). 

Following our review, we conclude that Herndon has failed to meet his 

burden of showing that revised Subchapter H clearly, palpably, and plainly 

violates his right to due process. Herndon does not establish an “irrebuttable 

presumption” argument, as he merely references two scholarly articles, which 

he did not attach to his brief, and does not assert a colorable claim that the 

legislature’s findings are contrary to a scientific consensus. See Manzano, 

237 A.3d at 1182; see also Torsilieri, 232 A.3d at 584-85. Herndon’s bare 

assertions that the registration, notification, and counseling provisions of 

revised Subchapter H are punitive because they are similar to those held 

punitive in Muniz, also fails to provide the “clearest proof” to override the 

legislature’s stated intent that revised Subchapter H is not punitive. See 

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8 Herndon adds that he “is aware that this . . . Court has rejected similar 

arguments[,]” but that he raises the claims now in light of pending 

constitutional challenges to Subchapter H in our Supreme Court. Herndon’s 

Brief at 31.
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Torsilieri, 232 A.3d at 589. Because Herndon has not established that 

Subchapter H imposes a criminal punishment, his sentencing challenges, 

which allege a cruel and unusual punishment, a violation of Apprendi, and 

the imposition of a penalty over the lawful maximum, must also fail. See

Butler, 226 A.3d at 987, 993 (noting that Apprendi is only implicated if a 

statute is punitive); cf. Commonwealth v. Howe, 842 A.2d 436, 446 (Pa. 

Super. 2004) (noting that Howe’s cruel and unusual punishment claim failed 

because the registration provisions were not punitive).

9

 Thus, we conclude 

that Herndon’s constitutional challenges to revised Subchapter H and his 

related illegal sentencing claims merit no relief. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/25/2022 

____________________________________________

9 We add that the majority and dissenting opinions in Thorne recognized that 

construing constitutional challenges to revised Subchapter H of SORNA as an 

illegal sentence before the statute is demonstrated to be punitive may “place 

the jurisprudential cart before the horse.” Thorne, 2022 WL 2231821, at *5 

(Baer, C.J., dissenting); see also id. at *5 n.14 (majority stating that it does 

“not necessarily disagree” with the dissent’s characterization).