[J-36-2016] [MO: Dougherty, J.] IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

**A.S., Appellee** 

**v.**

**PENNSYLVANIA STATE POLICE, Appellant**  **: :**  **: :**  **: :**  **: :**  **: :**  **: No. 24 MAP 2014**  **Appeal from the Order of the Commonwealth Court at No. 473 MD**  **2012, dated March 7, 2014**

**ARGUED: March 8, 2016**

DISSENTING OPINION

JUSTICE WECHT DECIDED: August 15, 2016 **Like it or not, our decision in this case should be contr olled by the unambiguous**  **language of 42 Pa.C.S. § 9795.1(b)(1) (superseded). I join in the bulk of Justice Todd’s**  **incisive analysis of that provision and in the well-rea soned conclusion that she draws in**  **her dissenting opinion. Like Justice Todd, I believe th at Subsection 9795.1(b)(1)**  **“clearly and unambiguously provides that any individua l who accrues multiple**  **convictions for offenses set forth in [Subsection 9795.1(a )] is subject to lifetime**  **registration as a sexual offender.” Dissenting Opinion at 1.**  **However, I believe that the plain meaning of the sta tutory language should mark**  **the beginning and the end of our analysis. In particu lar, I think it unnecessary to invoke**  **judicially derived interpretations of the statute’s “ov erall structure”**  **1 when the** 

**1 See Dissenting Opinion at 6 (quoting Commonwealth v**  **. Gehris, 54 A.3d 862, 867 (Pa. 2012) (Opinion in Support of Affirmance)).** **[J-36-2016] [MO: Dougherty, J.] - 2**

**legislature’s actual words compel the result. I would no t go so far as to assume or**  **suggest that the statutory framework “evidences a delibera te legislative judgment . . . to**  **make the differing length of registration requirement s dependent not only on the nature**  **of the specific sexual offenses for which an individual is convicted, but, also, on the**  **occurrence of a multiplicity of certain types of offenses, particularly those committed**  **against children,” or that “the frequency with which a convicted defendant is determined**  **to have engaged in certain types of prohibited condu ct with children is a particularly**  **important factor in determining whether he or she shou ld be subject to lifetime**  **registration.” Id. at 7 (quoting Commonwealth v. Ge hris, 54 A.3d 862, 867-68 (Pa.**  **2012) (Opinion in Support of Affirmance (“OISA”))). These are reasonable speculations.**  **But they are speculations nonetheless. It is axiomatic that, “[w]hen the words of a statute are**  **clear and unambiguous, there is no need to look beyond the plain meaning of**  **the statute ‘under the pretext of pursuing its spirit,’” and “[o]nly ‘[w]hen the words of**  **the statute are not explicit’ may a court resort to the rules of statutory construction[.]” W**  **arrantech Consumer Prods. Servs., Inc. v. Reliance Ins. Co. in Liquidation, 96**  **A.3d 346, 354 (Pa. 2014) (quoting 1 Pa.C.S. § 1921(b)). Our definition of “ambiguity”**  **is of central importance to this analysis. “A statute is ambiguous when there are at le**  **ast two reasonable interpretations of the text under review.” Id. at 3**  **54-55. Like Justice Todd, I am unpersuaded by the reasoning of t**  **he Opinion in Support of Reversal (“OISR”) in Gehris, quoted by today’s Majo**  **rity, regarding the threshold finding of ambiguity. According to the Majority:** 

**The ‘two or more convictions’ language in subsection (b) seems clear and**  **unambiguous on the surface. But if Section 9795.1 is v iewed as a whole**  **and the General Assembly’s legislative findings and decl aration of policy**  **at 42 Pa.C.S. § 9791 are read closely, it is clear th at the primary concern**  **is with sexually violent predators. [J-36-2016] [MO: Dougherty, J.] - 3** 

**Majority Opinion at 14 (quoting Gehris, 54 A.3d at 8 78-79 (OISR)).**  **From the frequency with which the term “sexually viole nt predator” appears in the**  **statutory text, as compared with the number of referen ces to nonviolent offenders, the**  **Majority and the OISR in Gehris derive support for th e proposition that Section 9795.1**  **reflected a recidivist philosophy, reserving the most ser ious registration consequence**  **for “more serious (primarily violent) offenders and ‘ true’ recidivists.” Id. (quoting Gehris,**  **54 A.3d at 879 (OISR)). In response to Justice Todd’s observation that the Majority has**  **not explained adequately** how **the statute is ambiguous, the Majority reiterates tha t, in**  **context, “the primary concern of the statute is with sexu ally violent predators and not**  **with nonviolent offenders.” Id. at 18 n.14 (citing G ehris, 54 A.3d at 878-79 (OISR)).**  **Like Justice Todd, I think it significant that no reasonab le alternative**  **interpretation of the language “two or more convictio ns” arises from the proposition that**  **“the primary concern” of the statute is with sexually vio lent predators. Nonetheless, I**  **differ with Justice Todd in her suggestion that, because “the vast majority of [Subsection**  **9795.1(a)(1) offenses] are offenses against children,” w e may presume “a deliberate**  **legislative judgment, consistent with its objective of protecting public safety, to make the**  **differing length of registration requirements depende nt not only on the nature of the**  **specific sexual offenses for which an individual is convicted , but, also, on the**  **occurrence of a multiplicity of certain types of offenses, particularly those committed**  **against children.” Dissenting Opinion at 6-7 (quoting Gehris, 54 A.3d at 867-68 (OISA)).**  **I view this analysis as positing an alternative “primary concern” of the statute which, like**  **that suggested by the Majority, does not flow inexorab ly from the unambiguous**  **language of Section 9795.1(b)(1). “Generally, the best indicator of legislative intent i**  **s the plain language of the statute.” Warrantech, 96 A.3d at 354. After concludin**  **g that the text of 42 Pa.C.S. [J-36-2016] [MO: Dougherty, J.] - 4** 

**§ 9795.1(b)(1) is susceptible to only one reasonable int erpretation, as Justice Todd and**  **I both do, we reach the end of the story. There is n o further need or warrant to inquire**  **into or speculate about the General Assembly’s intent, its objective, or its “primary**  **concern” in enacting that text into law. The General Assembly made its intent clear**  **through the use of the unambiguous language, “[a]n i ndividual with two or more**  **convictions of any of the offenses set forth in” 42 Pa.C. S. § 9795.1(a) “shall be subject**  **to lifetime registration” as a sexual offender. 42 P a.C.S. § 9795.1(b)(1).**  **Finally, I write separately to emphasize that I share deeply the concerns**  **underlying the Majority’s reasoning. Were we not con strained by the unambiguous**  **statutory text, I readily would endorse the Majority’ s approach. Although this Court in**  **Commonwealth v. Williams, 832 A.2d 962, 986 (Pa. 200 3), held that sexual offender**  **registration requirements are non-punitive for purpose s of due process, lifetime**  **registration as a sexual offender undoubtedly remains a uniquely burdensome**  **consequence of criminal conviction. As the Majority and t he Gehris OISR correctly**  **noted, the registration requirement can affect an indi vidual’s employment opportunities,**  **housing options, and reputation, and can result in crimi nal prosecution if violated. See**  **Majority Opinion at 13-14 (quoting Gehris, 54 A.3d a t 878 (OISR)). It is the Mark of** 

**Cain. Like the Majority, I believe that the statutory scheme**  should **embody a recidivist philosophy. Unfortunately, that is not what the legi**  **slative words did. I agree that fairness and justice are not achieved by the General Asse**  **mbly’s uniform treatment of first-time, nonviolent offenders and those who commit**  **the most serious and heinous sexual offenses. However, we are not addressing any con**  **stitutional challenge. This case presents a question of statutory interpretation.**  **This Court may not alter the meaning of unambiguous statutory language in order to**  **achieve what it perceives to be [J-36-2016] [MO: Dougherty, J.] - 5** 

**a preferable result. The statutory scheme operated to impose a perhaps unduly harsh**  **consequence upon those individuals who will receive the b enefit of the ruling reached**  **by today’s Majority. But this consequence is mandated by the statutory text. I**  **respectfully dissent.**