Com. v. Krzan, J.

J-A15036-24

2024 PA Super 207

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JESSE JOHN KRZAN :

:

Appellant : No. 1638 MDA 2023

Appeal from the Judgment of Sentence Entered August 22, 2023

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

No(s): CP-40-CR-0003198-2021

BEFORE: DUBOW, J., BECK, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED SEPTEMBER 12, 2024

Appellant Jesse John Krzan appeals the judgment of sentence entered

by the Court of Common Pleas of Luzerne County after a jury convicted

Appellant of rape of an unconscious person1 and sexual assault.2 Appellant

claims the trial court erred in allowing the Commonwealth to introduce

evidence of his pre-arrest silence, refusing to grant him a new trial based on

his challenge to the weight of the evidence, and imposing a lifetime sexual

offender registration requirement without holding an individualized

evidentiary hearing. After careful review, we affirm.

The trial court aptly summarized the factual background of the case as

follows:

On March 23, 2021, [Appellant] and M.W., both adults, met

on the online platform, “tinder,” which [Appellant] characterized

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. § 3121(a)(3).

2 18 Pa.C.S.A. § 3124.1.

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as a “hook-up site.” The pair dated for about three (3) weeks.

M.W. has a medical condition which apparently causes her to

temporarily lose consciousness when her heart rate becomes

elevated. [Appellant] was aware of this. At trial, anticipating that

his testimony might strain credulity, [Appellant] nonetheless

represented that on April 16, 2021, he broke up with M.W.

because he wanted to focus on work and because of her medical

condition. [Appellant testified that:] “[i]t was uncomfortable

towards me and that’s why I had to break up with her. [Appellant]

was, apparently, terminated from his employment during his short

relations with M.W. M.W. testified that they separated amicably

because she was leaving school for the summer to return to

Maryland. The couples’ breakup notwithstanding, the pair

remained in contact via social media, apps, or text messages from

that time up to the time of the offense on April 29, 2021.

On April 26, 2021, M.W. f[a]inted and hit her head while she

was at school. She sustained a concussion during that fall and

was excused for several days. A few days later, on April 28, 2021,

M.W. sent a “snapchat” notification to [Appellant] sometime

between the hours [of] 10:30 PM and 11:00 PM. [Appellant] did

not act on the “snapchat” notification for some time while he

bowled and drank alcohol with friends at Valley Lanes. Later, in

the early morning hours of April 29, 2021, M.W. was alone in her

dorm room struggling to sleep and playing on her phone when

[Appellant], by now out with friends at Sheetz in Dickson City,

responded to her “snapchat” notification.

On direct examination, [M.W.] testified that [Appellant]

called her but on cross examination she was unsure who initiated

the call. [Appellant] indicated to M.W. that he wanted to check in

on her. She spoke with him by phone and they exchanged several

messages via “snapchat” throughout the early morning hours. At

4:28 AM, M.W. received the message from [Appellant] indicating

that he was on his way and by 5:03 AM he was “outside.”

[Appellant] was a guest at her dorm at least one time previously

shortly after the pair connected on “tinder.” M.W. went to the

door and let [Appellant] into the building at 5:05 to 5:06 AM.

M.W. testified that [Appellant] appeared to be, “pretty

drunk” and he took off his shoes and climbed into her bed. At

trial, M.W. testified that she had no intention of engaging in sexual

activity with [Appellant] at that time. While in bed, [Appellant]

began to profess his love for M.W., telling her that he missed her.

He kissed her and reached his hand into her pants. M.W. removed

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[Appellant’s] hand from her pants, rebuffing his advances, telling

him they could discuss their relationship in the morning.

Thereafter, she turned over to sleep and apparently f[a]inted. She

awakened to [Appellant] lying on top of her. When she awoke, he

pulled away and pulled up his pants but not before she saw his

penis.

[Appellant] got dressed while M.W. called a friend, David,

who advised her that she should call the police. As [Appellant]

exited her room, M.W. contacted [Appellant’s] brother because

she was concerned that he would drive away while he was

intoxicated. She was concurrently concerned that [Appellant],

having exited her room, would enter the unlocked door of another

girl then residing in the dormitory. She located [Appellant], who

then protested that he had to go to work. She used her key to let

him out of the building.

[Appellant] does not dispute that he went to M.W.’s

dormitory early on April 29, 2021. He entered her room and

removed his shoes. He made sure that she was hydrated, had

access to nutrition and that she took her medication. Then,

referencing his innate ability to detect what he characterized as

romantic energy, [Appellant] “locked eyes” with M.W. and kissed

her. He acknowledged that his hand soon found its way into her

pants, and further, that she promptly removed it. Misled by his

ability to intuit the desires of others, [Appellant] testified that he

apologized for misunderstanding her feelings and that sexual

contact ceased at that time.

It is also undisputed that M.W. then became unconscious.

The parties’ testimony diverged when [Appellant] testified that he

did not insert his penis into M.W. but instead testified that she

experienced a seizure of some kind before awaking to ask him if

he raped her. [Appellant] was indignant; he said, “how could

you?” and then he put on his belt and shoes back on.

M.W. called the police and went to the emergency room at

Geisinger Medical Center where a sexual assault exam was

performed. Detective Robert Odgers Jr. of the Dallas Township

Police Department responded to the hospital to meet with her.

Evidence collected from M.W.’s sexual assault exam was sent to

the Pennsylvania Crime lab for DNA analysis. At trial, Detective

Odgers testified that he interviewed M.W. and that he collected

DNA pursuant to a warrant from [Appellant]. Noteworthy, his

testimony did not reference interviewing [Appellant] or

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attempting to interview him. The results of the DNA analysis

indicated that Non-sperm DNA matching [Appellant] was

recovered from samples taken from M.W.’s vagina and vulva.

Trial Court Opinion (T.C.O.), 2/20/24, at 3-9 (internal citations and footnote

omitted).

At the conclusion of the trial, the jury convicted Appellant of both rape

of an unconscious person and sexual assault. On August 22, 2023, the trial

court sentenced Appellant to not less than sixty months (60) nor more than

one hundred and twenty (120) months’ incarceration to be followed by three

years’ consecutive probation. The trial court indicated that Appellant was

subject to lifetime sexual offender registration requirements.

On August 29, 2023, Appellant filed a post-sentence motion, which the

trial court denied on November 6, 2023. Appellant filed a timely notice of

appeal on November 27, 2023 and complied with the trial court’s direction to

file a concise statement of errors on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant raises the following issues for our review on appeal:

I. Did the trial court err in holding that the Commonwealth

may always introduce evidence that a defendant chose not

to speak with the police prior to arrest so long as the

defendant testifies at trial even where the evidence would

not contradict anything to which the defendant specifically

testified and where the evidence is far more prejudicial than

probative?

II. Did the trial court abuse its discretion in denying the post-

sentence motion for a new trial because the verdict was

against the weight of the evidence?

III. Whether the trial court erred in requiring Appellant to

register pursuant to SORNA without holding an

individualized evidentiary hearing because SORNA’s

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mandatory, irrebuttable presumptions violate Appellant’s

right to reputation under the Pennsylvania Constitution?

Appellant’s Brief, at 9.

Appellant first claims the trial court erred in allowing the Commonwealth

to introduce evidence of Appellant’s pre-arrest silence for impeachment

purposes.3 We acknowledge that both the Fifth Amendment of the United

States Constitution and Article I, Section 9 of the Pennsylvania Constitution

protect an individual's right not to be compelled to be a witness against himself

or herself. See Commonwealth v. Adams, 39 A.3d 310, 316 (Pa.Super.

2012) (citing Commonwealth v. Lettau, 604 Pa. 437, 986 A.2d 114 (2009)).

Consistent with this principle, both federal and Pennsylvania courts have

held that the prosecution may not use a defendant’s decision to remain silent

during the preliminary stages of a criminal investigation as substantive

evidence. See Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14

L.Ed.2d 106 (1965) (holding that the Fifth Amendment “forbids either

comment by the prosecution on the accused’s silence or instructions by the

court that such silence is evidence of guilt”); Commonwealth v. Molina,

628 Pa. 465, 502, 104 A.3d 430, 451 (2014) (plurality) (finding that “Article

I, Section 9 is violated when the prosecution uses a defendant's silence

whether pre or post-arrest as substantive evidence of guilt”).

____________________________________________

3 It is undisputed that Appellant is challenging the prosecution’s cross-

examination of Appellant regarding his decision not to submit to a police

interview before his arrest and before he was given any warnings pursuant to

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).

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However, the United States Supreme Court has held that if a defendant

testifies at trial, “the Fifth Amendment is not violated by the use of prearrest

silence to impeach a criminal defendant’s credibility.” Jenkins v. Anderson,

447 U.S. 231, 238, 100 S. Ct. 2124, 2129, 65 L. Ed. 2d 86 (1980). See also

Commonwealth v. DiNicola, 581 Pa. 550, 560, 866 A.2d 329, 335 (2005)

(“neither the Fifth Amendment nor due process forecloses prosecution use of

a defendant's pre-arrest, pre-Miranda silence for purposes of impeachment

where the defendant elects to testify at trial”) (citing Jenkins, supra).

In comparison, the prosecution’s ability to use a defendant’s pre-arrest

silence for impeachment purposes is more limited under Article I, Section 9 of

the Pennsylvania Constitution. Our Supreme Court has provided that:

the Commonwealth must seek to impeach a defendant's relation

of events by reference only to inconsistencies as they factually

exist, not to the purported inconsistency between silence at arrest

and testimony at trial. Silence at the time of arrest may become

a factual inconsistency in the face of an assertion by the accused

while testifying at trial that he related this version to the police at

the time of arrest when in fact he remained silent. Absent such an

assertion, the reference by the prosecutor to previous silence is

impermissible and reversible error.

Commonwealth v. Turner, 499 Pa. 579, 583, 454 A.2d 537, 539–40

(1982).4

____________________________________________

4 We acknowledge the Supreme Court’s decision in Commonwealth v. Bolus,

545 Pa. 103, 680 A.2d 839 (1996) in which the High Court subsequently held

that “when a criminal defendant waives his right to remain silent and testifies

at his own trial, neither the United States nor the Pennsylvania Constitution

prohibit a prosecutor from impeaching a defendant's credibility by referring to

his pre-arrest silence.” Id. at 113, 680 A.2d at 844 (emphasis added). The

(Footnote Continued Next Page)

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As Justice Wecht aptly summarized in his concurrence in

Commonwealth v. Rivera, 296 A.3d 1141 (Pa. 2023), “in Pennsylvania, a

prosecutor may only impeach a testifying defendant if that defendant alleges

that his in-trial testimony is consistent with what he told the police earlier. If,

in fact, he never spoke to the police, and never provided the police the version

he conveyed to the jury, then the prosecutor may reveal to the jury through

cross-examination that the defendant had maintained his silence prior to

trial.” Id. at 1167 (Wecht, J., concurring).

Further, our Supreme Court has also held that the prosecution can “use

a defendant's pre-arrest silence not only to impeach a defendant's testimony

but as fair response to defense arguments.” Commonwealth v. Molina, 628

Pa. 465, 476, 104 A.3d 430, 436 (2014) (plurality) (citing DiNicola, 581 Pa.

550, 866 A.2d 329). In other words,

where a prosecutor's reference to a defendant's silence is a fair

response to a claim made by defendant or his counsel at trial,

there is no violation of the Fifth Amendment privilege against self-

incrimination. See United States v. Robinson, 485 U.S. 25, 32,

108 S.Ct. 864, 99 L.Ed.2d 23 (1988) (reference made to

defendant's silence at trial was fair because it was a legitimate

response to claims made by defendant's counsel). The protective

shield of the Fifth Amendment may not be converted into a sword

that cuts back on an area of legitimate inquiry and comment by

the prosecutor on the relevant aspects of the defense case. Id.

____________________________________________

Supreme Court then clarified in Commonwealth v. Molina, 628 Pa. 465, 104

A.3d 430 (2014) (plurality) that its decision in Bolus had been decided only

on federal grounds. Id. at 476, 104 A.3d at 436 n.18 (the defendant in Bolus

failed to present an argument for distinguishing the protections provided by

Section 9 from the federal provisions”).

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(citing United States v. Hasting, 461 U.S. 499, 516, 103 S.Ct.

1974, 76 L.Ed.2d 96 (1983)).

Commonwealth v. Copenhefer, 553 Pa. 285, 303, 719 A.2d 242, 251

(1998).

In this case, at the close of the Commonwealth’s presentation of

evidence, the trial court conducted a colloquy with Appellant to ensure he

understood his right to testify on his own behalf. When Appellant expressed

his desire to testify at trial, the prosecutor asked for a ruling that Appellant’s

pre-arrest silence was admissible for the purposes of impeachment. Notes of

Testimony (N.T.), 5/23/23, at 249-252.

After the parties were permitted to offer oral argument on this issue and

the trial court examined the case law presented by the parties, the trial court

stated “[u]pon perusing the case decided, it’s not permissible as substantive

evidence, but these cases seem to indicate that if a defendant testifies that it

would be a fair response for impeachment purposes.” N.T. at 251. The trial

court ruled that the prosecutor would be permitted to cross-examine Appellant

on his pre-arrest silence for the limited purpose of impeachment. N.T. at 251.

The trial court also added that it would give a jury instruction that any

evidence of Appellant’s pre-arrest silence should only be used for

impeachment purposes in judging Appellant’s credibility. N.T. at 251-52.

Thereafter, on cross-examination, the following exchange occurred

between the prosecutor and Appellant when the prosecutor attempted to

create a timeline of events in relation to Appellant’s employment status:

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[Prosecutor:] Do you recall at what period of your relationship?

Was it week one, two, or three that you were fired?

[Appellant:] Probably three, I’m going to say.

[Prosecutor:] Week three?

[Appellant:] Yes.

[Prosecutor:] So when did you get your next job?

[Appellant:] Summertime when it came through. That’s when

actually Mr. Odgers called the – I was at McLain – about all this

incident stuff.

[Prosecutor:] Detective Odgers called you?

[Appellant:] Yes.

[Prosecutor:] Why did he call you?

[Appellant:] To give me the information of what [M.W.] had told

me and all the incident stuff. He wanted to get my information

and meet up with me to do stuff like that.

[Prosecutor:] And you never met up with him did you?

[Appellant:] I did for when he gave me the warrant for the DNA

swab.

[Prosecutor:] Right. You don’t have a choice then. But prior to

that, he asked you to come and set up an appointment with you

and you never showed up to give your side of the story; isn’t that

correct?

[Appellant:] Yes.

N.T. at 290-91 (emphasis added).

In this exchange, Appellant gave unsolicited testimony that prior to his

arrest, Detective Odgers had called to speak about the allegations that the

victim had made against him and wanted to meet with Appellant to get his

“information.” This misleading testimony created a false impression that

Appellant had spoken to the detective before his arrest to relate his version of

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the events which was consistent with the testimony he would give at trial. As

Appellant never actually provided the police with the account that he

presented to the jury, we agree that Appellant’s testimony opened the door

for the prosecutor to impeach Appellant’s credibility with the inconsistency

between this testimony and his pre-arrest silence. Moreover, we agree with

the trial court that the prosecutor’s reference to Appellant’s pre-arrest silence

was a fair response to Appellant’s suggestion that he was forthcoming with

information and had met with detectives to give his statement in this case.

Further, we note that the prosecution did not reference Appellant’s pre-

arrest silence on any other point during testimony or in closing argument.

Detective Odgers did not mention at any point that Appellant had declined his

request for an interview. The trial court gave the jury an instruction that the

fact that Appellant did not speak with the detective before his arrest could not

be used as substantive evidence of guilt, but only for the limited purpose of

assessing Appellant’s credibility. N.T. at 328-29. “It is well settled that the

jury is presumed to follow the trial court's instructions[.]” Commonwealth

v. Lamont, 308 A.3d 304, 312 (Pa.Super. 2024) (citation omitted).

Appellant argues that the Supreme Court’s decision in Commonwealth

v. Stevenson, ___A.3d___, 23 EAP 2023, 2014 WL 3490768 (Pa. July 22,

2024) defeats the Commonwealth’s argument that Appellant opened the door

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to allow the prosecution to impeach him with his pre-arrest silence.5 However,

we find Stevenson to be distinguishable from the case at bar.

In Stevenson, the defendant proceeded to trial on charges of robbery,

burglary, and conspiracy to commit armed robbery. At trial, defense counsel,

after notifying the trial court that the defendant had elected to testify on his

own behalf, made an oral motion to preclude the prosecution from introducing

the defendant’s 2005 conviction for burglary on the basis that the conviction

was too remote in time. The trial court denied defense counsel’s motion and

ruled that the conviction was admissible. Thereafter, defense counsel

preemptively introduced the conviction by asking the defendant directly about

his prior crime on direct examination.

On appeal, a panel of this Court affirmed the defendant’s conviction.

While this Court did not decide the merits of the defendant’s claim that his

prior conviction was inadmissible, this Court determined that the defendant

had forfeited that claim on appeal by preemptively introducing the prior

conviction himself following the trial court’s ruling.

However, the Supreme Court reversed, holding that:

a defendant does not waive his or her right to appellate review of

the admissibility of a prior conviction for impeachment purposes

under the circumstances presented—i.e., where the defendant

preemptively introduces that evidence on direct examination

____________________________________________

5 Appellant submitted a “Petition for Permission to File a Post-Submission

Communication Pursuant to Pa.R.A.P. 2501(a) and (b)” to notify this Court of

the Stevenson decision. We grant Appellant’s petition, but find the

Stevenson decision to be inapplicable to our analysis in this case.

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following a trial court's definitive ruling against him on a motion

in limine.

Id. at *12 (Pa. July 22, 2024).

In this case, Appellant argues that this case is analogous to Stevenson

as the prosecution informed the trial court in an oral motion in limine that it

intended to impeach Appellant with his pre-arrest silence and the trial court

made a ruling that such evidence was admissible for the limited purpose of

impeachment.

However, Appellant did not introduce evidence of his pre-arrest silence

preemptively in this case and the Commonwealth did not argue that he had

waived any challenge to the admission of such evidence. Rather, Appellant

gave testimony which created a false impression that he had been forthcoming

in giving a statement to police prior to his arrest when he in fact had declined

to speak with them altogether.

Based on these facts, we reiterate that the prosecutor’s reference to

Appellant’s pre-arrest silence was a fair response to highlight the factual

inconsistency of Appellant’s testimony suggesting that he had given police his

version of the events in question prior to his arrest when he in fact had

remained silent. Appellant cannot use the protections of the Fifth Amendment

and Article I, Section 8 as a sword to prohibit the prosecution from making a

legitimate inquiry into a relevant defense claim. As such, we conclude that

the trial court did not err in permitting the prosecutor to impeach Appellant

with his pre-arrest silence.

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Appellant also argues that the trial court erred in refusing to grant him

a new trial based on his claim that the jury’s verdict was against the weight

of the evidence. In reviewing such a challenge, we observe the following

standard of review:

A motion for a new trial based on a claim that the verdict is against

the weight of the evidence is addressed to the discretion of the

trial court. Commonwealth v. Widmer, 560 Pa. 308, 319, 744

A.2d 745, 751–52 (2000); Commonwealth v. Brown, 538 Pa.

410, 435, 648 A.2d 1177, 1189 (1994). A new trial should not be

granted because of a mere conflict in the testimony or because

the judge on the same facts would have arrived at a different

conclusion. Widmer, 560 Pa. at 319–20, 744 A.2d at 752.

Rather, “the role of the trial judge is to determine that

‘notwithstanding all the facts, certain facts are so clearly of greater

weight that to ignore them or to give them equal weight with all

the facts is to deny justice.’” Id. at 320, 744 A.2d at 752 (citation

omitted). It has often been stated that “a new trial should be

awarded when the jury's verdict is so contrary to the evidence as

to shock one's sense of justice and the award of a new trial is

imperative so that right may be given another opportunity to

prevail.” Brown, 538 Pa. at 435, 648 A.2d at 1189.

An appellate court's standard of review when presented with a

weight of the evidence claim is distinct from the standard of review

applied by the trial court:

Appellate review of a weight claim is a review of the exercise

of discretion, not of the underlying question of whether the

verdict is against the weight of the evidence. Brown, 648

A.2d at 1189. Because the trial judge has had the

opportunity to hear and see the evidence presented, an

appellate court will give the gravest consideration to the

findings and reasons advanced by the trial judge when

reviewing a trial court's determination that the verdict is

against the weight of the evidence. Commonwealth v.

Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976). One

of the least assailable reasons for granting or denying a new

trial is the lower court's conviction that the verdict was or

was not against the weight of the evidence and that a new

trial should be granted in the interest of justice.

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Widmer, 560 Pa. at 321–22, 744 A.2d at 753 (emphasis added).

Commonwealth v. Clay, 619 Pa. 423, 431–32, 64 A.3d 1049, 1054–55

(2013).

Our review of the evidence shows the trial court did not abuse its

discretion in denying Appellant’s challenge to the weight of the evidence.

Although the parties’ romantic relationship had ended well before the night in

question, Appellant claimed that he came to M.W.’s apartment on that early

morning to check on her after she had suffered a concussion from a recent

fainting episode at school. Thereafter, when Appellant initiated sexual contact

by kissing M.W. and attempting to put his hand down M.W.’s pants, Appellant

admitted that he misinterpreted M.W.’s emotions and removed his hand when

she rejected his advances and told him to stop. N.T. at 284-85. Appellant

denied touching M.W.’s vagina when he had his hand down her pants. N.T.

at 285. Appellant apologized to M.W. for missing her “message” that she did

not want sexual contact and agreed it was more appropriate to go to sleep

and talk about their relationship in the morning. N.T. at 285.

Appellant claimed that while he was laying in M.W.’s bed, she started

having a seizure. N.T. at 286. Appellant claimed that when M.W.’s seizure

subsided, she accused him of raping her without justification. N.T. at 286.

Appellant does not claim M.W. consented to sexual contact, but insisted that

sexual contact had never occurred despite M.W.’s suspicions to the contrary.

Appellant claimed that on a previous occasion, M.W. had become confused

during consensual sexual intercourse as the result of her medical condition.

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However, the Commonwealth presented DNA evidence supported

M.W.’s version of the facts at issue. Although Appellant denied any suggestion

that Appellant had inserted his penis or his finger into her vagina, M.W.’s rape

kit examination samples revealed the presence of Appellant’s DNA in M.W.’s

vagina and labia. M.W. indicated that she believed she had passed out while

the parties were in bed; when she regained consciousness, she felt Appellant’s

penis thrusting inside of her. N.T. at 70, 110. While M.W. did not initially

understand what was happening, she observed Appellant’s exposed penis

when he quickly got up and began to get dressed. N.T. at 71.

While the jury was asked to weigh the testimony of Appellant and M.W.,

the jury was free to believe M.W.’s testimony and reject Appellant’s version

of the events. This Court has emphasized that “the trier of fact while passing

upon the credibility of witnesses and the weight of the evidence produced, is

free to believe all, part or none of the evidence.” Commonwealth v.

Andrulewicz, 911 A.2d 162, 165 (Pa.Super. 2006) (finding that factfinder

“was free to accept [the victim’s] characterization of what transpired with

Appellant, particularly her representation that [the defendant] “raped” her).

As such, we conclude that the trial court properly exercised its discretion in

denying Appellant’s weight of the evidence claim.

Lastly, Appellant argues that the trial court erred in failing to hold an

evidentiary hearing on his challenge to his registration under Revised

Subchapter H of Pennsylvania’s Sexual Offender Registration and Notification

Act (SORNA II) based on his claim that SORNA II creates an irrebuttable

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presumption of future dangerousness which violates his right to reputation

under the Pennsylvania Constitution.

During the pendency of this appeal, our Supreme Court recently filed its

decision in Commonwealth v. Torsilieri, 316 A.3d 77 (Pa. 2024)

(“Torsilieri II”), in which it considered inter alia “whether the General

Assembly's determination, in [SORNA II], that individuals who commit sexual

offenses pose a high risk of committing additional sexual offenses constitutes

an unconstitutional irrebuttable presumption violative of due process, because

it impairs the right to reputation under the Pennsylvania Constitution.” Id. at

79. The Supreme Court further clarified that:

[t]he first issue before us concerns a presumption which largely

undergirds the criminal justice system's treatment of sex

offenders: that those who commit sexual offenses pose a high risk

to reoffend. The General Assembly has memorialized this

presumption in its legislative findings: “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). To challenge

such assumptions under the irrebuttable presumption doctrine, a

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.

Id. (some internal citations omitted).

As the Supreme Court found that parties did not “meaningfully dispute”

the first prong of this test (whether the presumption infringed on an interest

protected by the due process clause), the Supreme Court focused on the

second prong of this test – whether the presumption is universally true. Id.

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at 97, n. 13. The Supreme Court emphasized that “to meet his heavy burden

of establishing that the General Assembly's presumption was not universally

true, Appellee was required to establish that there exists a scientific consensus

that sexual offenders pose no greater risk of committing additional sexual

crimes than other groups not subject to similar registration laws.” Id. at 98-

99. In evaluating the evidence set forth in the record, the Supreme Court

held that:

Appellee's own experts concede that adult sexual offenders

reoffend at a rate of at least three times higher than other

individuals convicted of non-sexual offenses. Accordingly, rather

than refuting it, the evidence supports the legislative

presumption; the evidence validates the statutory underpinnings

of Subchapter H. We need go no further. Having reviewed the

arguments and the evidence presented below, we find that the

evidence does not demonstrate a consensus that the presumption

at issue is not universally true. Thus, we hold that Appellee has

failed to meet his heavy burden to demonstrate that the

irrebuttable presumption at issue was constitutionally infirm.

Id. at 99-100 (internal citations and footnote omitted) (emphasis in original).6

In this case, Appellant argued in his post-sentence motion and appellate

brief that this Court should adopt the findings of the trial court in Torsilieri,

which had found that SORNA II’s irrebuttable presumptions violate a

registrant’s right to reputation and due process. Appellant’s mere citation to

the trial court’s now-overruled decision in Torsilieri does not entitle him to

an evidentiary hearing. Appellant did not ask for a hearing or request any

opportunity to present any evidence to attempt to show the General

____________________________________________

6 Given its disposition of the second prong, the Court found it unnecessary to

analyze the final prong of the irrebuttable presumption doctrine.

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Assembly's presumption was not universally true. Instead, Appellant claimed

that he should not have to register under SORNA II as he argues that he “had

no prior record, [] will serve five to ten years before being released, [] had

overwhelming family and community support, and there is no evidence in the

record that he is likely to reoffend.” Post-sentence motion, at 25.

Given that our Supreme Court has upheld the General Assembly’s

presumption that adult sexual offenders pose a high risk of committing

additional sexual offenses, Appellant has not shown he is entitled to any relief.

Judgment of sentence affirmed. Application for Post-Submission

Communication granted.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 09/12/2024

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